Creative Autonomy, Copyright and Popular Music in Nigeria [1st ed.] 9783030486938, 9783030486945

Table of contents :
Front Matter ....Pages i-xxv
The Significance of Measuring Creative Autonomy for Copyright Law (Mary W. Gani)....Pages 1-46
The Traditional Structure of the Popular Music Industry, and the Performing Author’s Role (Mary W. Gani)....Pages 47-75
The Unique Structure of the Nigerian Popular Music Industry (Mary W. Gani)....Pages 77-96
An Empirical Analysis of the Status of Performing Authors’ Creative Autonomy (Mary W. Gani)....Pages 97-137
Justifying Creative Autonomy within Copyright Discourse (Mary W. Gani)....Pages 139-171
Problems for Creative Autonomy in Copyright Law (Mary W. Gani)....Pages 173-195
Problems for Creative Autonomy in New Business Models (Mary W. Gani)....Pages 197-212
Problems for Creative Autonomy in Recording Contracts (Mary W. Gani)....Pages 213-240
Strategic Policy and Legislative Recommendations for the Preservation of Creative Autonomy (Mary W. Gani)....Pages 241-270
Summary and Conclusions (Mary W. Gani)....Pages 271-274
Back Matter ....Pages 275-310

Citation preview

Creative Autonomy, Copyright and Popular Music in Nigeria Mary W. Gani

Creative Autonomy, Copyright and Popular Music in Nigeria “This book dissects the laws that hold the Nigerian music industry together. It is a crucially needed guide for building mutually beneficial and sustainable relationships.” —Mai Atafo, Lagos, Nigeria “Dr. Gani explores the reality of creative freedoms for music artists in Nigeria from a fresh and critical author-centric perspective. This is an important book, as it identifies necessary changes in copyright law and business practices which would foster fair and just protection for artists, and sustainability for music industries.” —Gaetano Dimita, Queen Mary University of London, UK “This is a very interesting book. There is neither much writing available on the Nigerian popular music industry, nor on Nigerian copyright law. On the question of creativity in this particular cultural context, creativity and creative autonomy are usually discussed in relation to European or North American music industries, so this book covers a new and important field.” —Bankole Sodipo, Babcock University, Nigeria “Creative Autonomy, Copyright and Popular Music in Nigeria is a welcome academic text, which offers a critical and well-informed perspective on the Nigerian popular music industry, and in particular the role of different legal provisions on the creative autonomy of performing authors (singer-songwriters). The global approach of the book offers theoretical discussions of copyright law, which are well supported with additional findings of an empirical study.” —Metka Potoˇcnik, University of Wolverhampton, UK “This is an important and quite timely book, particularly in light of the recognition that African music has gained globally in recent years. This book presents well-thought-out arguments and is indeed a contribution to the body of knowledge in the area of copyright law and cultural industries. The book is elegantly constructed and addresses the pre-existing issues of creative autonomy, which are explored in detail, in chapters six, seven and eight. This book is essential for anyone who is interested in reading about the Nigerian popular music industry, especially in relation to creative autonomy, and is also interested in the framework of how copyright policies may be cultivated to address other issues which impact the Nigerian economy.” —Folashade Adeyemo, University of Reading, UK

Mary W. Gani

Creative Autonomy, Copyright and Popular Music in Nigeria

Mary W. Gani Independent Scholar London, UK

ISBN 978-3-030-48693-8 ISBN 978-3-030-48694-5 (eBook) https://doi.org/10.1007/978-3-030-48694-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For my mother, Taiwo, and the memory of my father, Bitrus… for their unwavering love and support, and for teaching me to think.

Foreword

Many works have discussed the notion of creativity within the music industry, as well as the contours of copyright law within that industry. There is a dearth of works, however, which draw upon empirical findings emanating from field work undertaken within the industry; and less so on detailed analysis of one of the most popular world music industries, namely the Nigerian popular music industry, which has been forefront in the international growth of the Afro-Pop or Afrobeats genre. Dr. Mary Gani’s work fills this lacuna by offering a well-analysed critical account of the concept of creative autonomy and its effect on copyright law. The work offers a fresh perspective on music industries as a whole and a rare glimpse into the modern Nigerian popular music industry that was hitherto unavailable. The book explores the theoretical foundations of copyright law and weaves these concepts in support of the concept of “creative autonomy” as a means of measuring the creativity of authors. The link between copyright and creativity has been discussed in many previous works by several scholars. Dr. Gani’s work goes further and escalates the notion of creative autonomy into a tool—using it to gauge the efficacy of copyright law in incentivising musical creativity, and to determine how existing recording and business practices can be changed to allow more authentic creative expression. This work is a tour de force, combining philosophical theory with copyright law, within the dynamic context of the contractual practices in the

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FOREWORD

music industry. It derives from Mary’s doctoral dissertation which I supervised together with Dr. Gaetano Dimita at Queen Mary University of London. Her enthusiasm for the subject was clearly born from her early internships in the Nigerian popular music industry, her profession as a lawyer and from foresight about the industry’s international economic potential. The book shows a commitment to presenting a critical and balanced view of stakeholders’ opinions. Indeed, it does not sanctify the performing author or demonise the record label. It will be a valuable read for policy makers, lawyers, musicians and music managers. London, UK May 2020

Dr. Uma Suthersanen Chair in Global Intellectual Property Law, Deputy Director, Queen Mary Intellectual Property Research Institute, Queen Mary University of London

Acknowledgments

Special thanks to Michelle Chen, Rebecca Roberts, Ashwini Elango and the team at Palgrave Macmillan for their support in the process of writing this book. My sincere gratitude goes to my Ph.D. supervisors at Queen Mary, University of London (QMUL), Professor Uma Suthersanen and Dr. Gaetano Dimita, for their encouragement and commitment. They challenged me to exceed my personal limits and were my foremost sources of inspiration in the course of my Ph.D. I am also immensely grateful to Professor Adrian Sterling, who generously gave me books and law reports gratis, and loaned me some classic texts. I am thankful for the kind support of Malcolm Langley at the Intellectual Property Archives in Russell Square, and I am thankful for the generosity of the Herchel Smith Scholarship Award which I received in the course of my Ph.D. programme at QMUL. I am grateful to have received kind audience from interviewees on this project, especially Professor Bankole Sodipo, Audu Maikori, Cobhams Asuquo, Honey Onile-Ere, Ruby Gyang, Praiz, Abraham Kolo and Jesse Jagz, among others. My kind-hearted proofreaders entertained my interruption of their busy schedules, and I deeply appreciate the effort and time it cost: Professor Taiwo Gani, Grace Gani, Ayemere Umane and Dr. Arinola Adefila.

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ACKNOWLEDGMENTS

I have been, in no small way, enabled and enthused by the love, cheer and kindness of my family: Mum, Grace, Margaret and Peter!!!! Very importantly too, Uncle Chris and Auntie Kehinde Umane, Uncle Sam and Auntie Lande Akinluyi, Christine Atafo, Ayo Akinluyi (!), Tolu Akinluyi, Uncle Bishop and Auntie Gloria Kwashi, Auntie Remi Iseko, Auntie Rebecca Ogunbiyi, Uncle Reuben and Auntie Hajara Danladi, Uncle Charles and Auntie Uche Ononiwu, and Eyza Anga, among many others…. It would be impossible to enumerate the innumerable times they have called, encouraged and given of themselves and their resources towards the progress of this book. I am indebted to my friends; Antoinette Kwegan, Dr. Monique Charles, Dr. Tendayi Bloom, Nicole Nwasike, Matthew and Hannatu Gabriel, Olohi Omidiji, Dolly Fagbemide, Maryam Olusola-Sowoolu, Kemi Saleh, Shanu Omole, Dr. Muyiwa Oyinlola, Aibe Dangana and John and Danni Trombi, among many others, who were supportive and encouraging even when my schedule was overwhelming. Regular chats with my Y.W.A.P. family, C.A. family, and my classmates from Air Force (Girls’) Military Schools, have kept me sane and sociable despite the pressure of writing deadlines. The bonds are old, deep and precious, and I am grateful for them. To my many relatives and friends who have patiently understood and forgiven the unreturned phone calls, and endured the “so happy to see you, but I’ve got to leave” moments of my life in the last few years; I am grateful for their understanding and steadfast love. To You, Rohi! Thank You for being there at the beginning and for being here now at this end.

Contents

1

The Significance of Measuring Creative Autonomy for Copyright Law 1.1 Introduction to the Problem 1.2 Illustration of the Problem 1.2.1 Uniform Sounds and the Interplay between Creativity and Commerce 1.2.2 The ‘Performing Author’ and the Intersection between Creating and Performing a Work 1.2.3 Copyright and the Status Quo 1.3 Significance of this Book 1.4 Hypothesis and Sub-questions 1.5 Scope and Limitations 1.6 Sources and Materials Used 1.7 Methodology 1.7.1 Conceptualising a Framework for Measuring Creativity 1.7.2 Measuring Creative Autonomy 1.8 A Brief Overview of Copyright in Music 1.8.1 The Requirement of Originality under Copyright Law 1.8.2 An Overview of Authorial Economic Rights 1.8.3 Authorship and Ownership 1.8.4 Performers’ Rights 1.9 Conclusion

1 1 4 4 7 9 10 16 18 21 23 23 27 28 30 37 38 42 46 xi

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CONTENTS

2

The Traditional Structure of the Popular Music Industry, and the Performing Author’s Role 2.1 Introduction 2.2 Defining Popular Music 2.3 The Traditional Structure of the Popular Music Industry 2.3.1 Executive Roles 2.3.1.1 Artiste and Repertoire (A&R) Agents 2.3.1.2 Record Label Executives 2.3.1.3 Music Publishing Executives 2.3.1.4 Promoters and Distributors 2.3.2 Creative Roles 2.3.2.1 Authors: Composers and Lyricists 2.3.2.2 Performers 2.3.2.3 The Performing Author 2.3.3 Independent Music and Producers 2.3.4 Collective Administration 2.4 Conclusion

3

The Unique Structure of the Nigerian Popular Music Industry 3.1 Introduction 3.2 The Structure and Development of the Nigerian Popular Music Industry 3.3 Undocumented, yet Formidable Distribution Networks—Alaba International Market 3.4 The Nigerian Copyright Commission and the Regulation of Collective Administration for Music 3.5 The Developments in the Genre of Afro-Pop Since the Mid-1990s 3.6 Conclusion

47 47 48 52 54 56 60 61 64 66 66 67 68 69 73 75

77 77 78 82

86 92 95

CONTENTS

4

An Empirical Analysis of the Status of Performing Authors’ Creative Autonomy 4.1 Introduction 4.1.1 Objectives and Methodology 4.2 Performing Authors 4.2.1 Performing Authors’ Perspective on Music Authorship 4.2.1.1 Ideals in Song Writing 4.2.1.2 Concerns in the Authorial Process 4.2.1.3 The Impact of the ‘Performing Author–Record Label’ Relationship on the Creative Process 4.2.1.4 Numeric Effect of the Status Quo on Cultural Output 4.2.1.5 Methods of Choosing Songs for Release to the Public 4.2.1.6 Unveiling the Participants in the Authorial Process 4.2.1.7 Creative Control 4.2.2 Concerns Arising from Copyright Exploitation Contracts 4.2.3 Performing Authors’ Perspective on Copyright Law in Nigeria 4.2.4 Anecdotal Concerns 4.2.5 Defining the Ideals of Creative Autonomy 4.3 Record Label Executives 4.3.1 On the Creative Process 4.3.2 On Recording Contracts 4.3.3 On Copyright Law 4.4 Observations from Stakeholders 4.4.1 On the Creative Process 4.4.2 On the Interactions between Record Labels Executives and Performing Authors 4.4.3 On Copyright Law 4.5 Comparative Observations from Entire Sample 4.5.1 Competing Concerns in Authorial Processes 4.5.2 On Copyright Law 4.5.3 The Decision Maker in Authorial Processes 4.6 Postscript on Copyright and Contracts

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97 97 99 101 101 101 102

103 104 105 108 109 110 113 115 116 117 117 121 121 123 124 125 125 127 127 128 129 129

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4.6.1

4.7 5

On Contracts 4.6.1.1 Jesse Jagz 4.6.1.2 ‘X-Band’ 4.6.2 On Copyright Conclusion

Justifying Creative Autonomy within Copyright Discourse 5.1 Introduction 5.2 Canonical Articulations of Creative Autonomy within Human Rights and International Conventions 5.2.1 Freedom of Expression within Human Rights Law 5.2.2 The Right to Moral and Material Interests from Authorship 5.2.3 The Preservation of Autonomy and Diversity in Cultural Expression 5.3 Justification for Creative Autonomy in Deontological Theories 5.3.1 Justifying Creative Autonomy in Lockean Theory 5.3.2 The Kantian Concept of Creative Autonomy 5.3.3 Hegel on Creative Autonomy 5.3.4 Moral Rights as Distinct from Creative Autonomy 5.4 A Consequentialist Case for Creative Autonomy 5.4.1 Classical Utilitarian Thought 5.4.2 Theories on the Measurement of Utility 5.4.3 The Consequentialist Computation of Efficiency in Copyright 5.4.3.1 Incentives for Authors 5.4.3.2 Society’s Access to Cultural Works 5.4.3.3 Creative Autonomy in the Consequentialist Formula for Efficiency in Copyright Law 5.5 Conclusion

130 130 133 134 136

139 139

140 140 142 144 145 146 149 151 153 157 159 162 166 167 169

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6

7

8

Problems for Creative Autonomy in Copyright Law 6.1 Introduction: Anomalies in the Dynamics of Copyright Law 6.2 Pre-fixation 6.2.1 The Interval between Creation and Fixation 6.2.2 Problems for Performing Authors 6.3 Fixation: Its Definition and Impact on Authorship 6.3.1 The Insufficiency of Performers’ Rights 6.3.2 Authorship of Sound Recordings 6.3.3 The Bargaining for Sound Recording Rights 6.4 Ineffective Restrictions on the Transmission of Moral Rights 6.5 Conclusion Problems for Creative Autonomy in New Business Models 7.1 Introduction: New Music Platforms as Opportunities or Threats to Creative Autonomy 7.2 Television Talent Competitions 7.3 The Internet as an Aid or Hurdle for Performing Authors 7.4 The Nature and Effects of Multiple Rights ‘360’ Deals 7.5 Conclusion Problems for Creative Autonomy in Recording Contracts 8.1 Introduction 8.2 Assignments v Licences 8.3 Work-for-Hire Clauses in Recording Contracts 8.4 Unfair Bargaining Terms 8.4.1 Unfair Terms 8.4.2 Non-payment of Consideration: Controlled Composition Clauses 8.4.3 Ambiguous Terms 8.5 Conclusion

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173 173 175 175 177 180 183 184 189 192 195

197 197 199 204 208 211

213 213 214 220 225 225 231 236 238

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9

Strategic Policy and Legislative Recommendations for the Preservation of Creative Autonomy 9.1 Introduction 9.2 Policy Recommendations: Guidelines for Performing Authors 9.2.1 The Importance of Courting Public Sympathy 9.2.2 Copyright Education for Performing Authors 9.2.3 Guidelines for Performing Authors in Negotiations for Copyright Exploitation Contracts 9.2.4 Recording Studio Etiquette for the Performing Author 9.3 Legislative Recommendations: Reflecting the Importance and Fragility of Authorial Independence 9.3.1 Vesting Authorship of Sound Recordings in Performing Authors 9.3.2 Protecting Performing Authors’ Creative Autonomy in Copyright Exploitation Contracts 9.3.3 The Practicality of Reintroducing the Reversion Clause 9.3.3.1 Economic Practicality 9.3.3.2 Inalienability 9.3.3.3 Restoring Creative Autonomy 9.3.3.4 Concluding Remarks on the Reversion Clause 9.3.4 The Importance of Implementing National Copyright Goals 9.4 Conclusion: Proposed Amendment Bill

263 264

Summary and Conclusions

271

10

241 241 242 243 245

247 248

249 251

254 256 258 260 261 262

Bibliography

275

Index

305

Abbreviations

A&R ASCAP BMI CJEU COSON CPI ECHR FRN ICESCR IFPI LFN MCSN NCC PMAN PRS TRIPS UDHR UrhG VARA WCT WIPO WPPT

Artist and Repertoire American Society of Composers, Authors and Publishers Broadcast Music Inc Court of Justice of the European Union Copyright Society of Nigeria Code de la Propriété Intellectuelle (Intellectual Property Code, France) European Court of Human Rights Federal Republic of Nigeria International Covenant on Economic, Social and Cultural Rights International Federation of the Phonographic Industry Laws of the Federation of Nigeria Musical Copyright Society of Nigeria Nigerian Copyright Commission Performing Musicians Employer’s Association of Nigeria Performing Rights Society Trade Related Aspects of Intellectual Property Universal Declaration of Human Rights Urheberrechtsgesetz (Copyright Act, Germany) Visual Artists Rights Act WIPO Copyright Treaty World Intellectual Property Office WIPO Performances and Phonograms Treaty

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List of Statutes, Conventions, Directives, Decrees and Regulations

Agreement on Trade Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement) Beijing Treaty on Audiovisual Performances 2012 Berne Convention for the Protection of Literary and Artistic Works 1886 Code de la Propriété Intellectuelle (CPI) 1992 (Intellectual Property Code, France) Constitution of the Federal Republic of Nigeria 1999 Consumer Contracts (Regulation of Unfair Terms) Bill 2010 (Nigeria) Copyright (Amendment) Decree No 42 of 1999 (Nigeria) Copyright (Amendment) Decree No 98 of 1992 (Nigeria) Copyright (Collective Management Organizations) Regulations 2007 (Nigeria) Copyright (Dispute Resolution Panel) Rules 2007 (Nigeria) Copyright (Optical Discs Plants) Regulations 2006 (Nigeria) Copyright (Reciprocal Extension) Order 1972 (Nigeria) Copyright (Security Devices) Regulations 1999 (Nigeria) Copyright (Video Rental) Regulations 1999 (Nigeria) Copyright Act 1911 (Great Britain) Copyright Act 1968 (Australia) Copyright Act 1970 (Nigeria), Decree No 61 of 1970 Copyright Act 1976 (US) Copyright Act 1985 (Canada) Copyright Act, Chapter 28, Laws of the Federation of Nigeria 2004

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LIST OF STATUTES, CONVENTIONS, DIRECTIVES, DECREES …

Copyright Act, USSR Laws 1925, No 67 (January 30, 1925) Copyright Act, USSR Laws 1928, No 246 (May 16, 1928) Copyright and Duration of Rights in Performances Regulations 2013 (UK) Copyright Decree 1988 (Nigeria) Copyright, Designs and Patents Act 1988 (UK) Customs and Excise (Copyright) Regulations 1973 (Nigeria) Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and Certain Related Rights Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the Legal Protection of Computer Programmes Directive 93/13/EEC on Unfair Terms in Consumer Contracts Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases EU Directive 2011/…/EU, amending Directive 2006/116/EC on the Term of Protection of Copyright and Certain Related Rights, available at http://ec.europa.eu/internal_market/copyright/docs/term/ 2011_directive_en.pdf European Convention on Human Rights 1950 Federal Act on Collecting Societies 2005 (Austria) Human Rights Act 1988 (UK) Intellectual Property and Omnibus Communications Reform Act 1999 (US) International Bill of Human Rights 1948 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) 1961 International Covenant on Civil and Political Rights 1976 International Covenant on Economic, Social and Cultural Rights 1976 Interpretation Act C123, LFN 2004 (Nigeria) Labour Act L1, LFN 2004 (Nigeria) Nigerian Copyright Commission (Appointment of Copyright Inspectors) Notice 1977 (Nigeria) Statute of Anne 1710, 8 Anne, c19 (UK) Statute of Monopolies 1624, 21 Jac, c3 (UK) The Constitution of the United States UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005

LIST OF STATUTES, CONVENTIONS, DIRECTIVES, DECREES …

xxi

Unfair Contract Terms Act 1977 (UK) Unfair Terms in Consumer Contracts Regulations 1999 (UK) Universal Declaration of Human Rights 1948 Urheberrechtsgesetz (UrhG) 1965, as amended 1998 (Copyright Act of Germany) Visual Artists Rights Act 1990 (US) WIPO Copyright Treaty 1996 WIPO Performances and Phonograms Treaty 1996 Work Made For Hire and Copyright Corrections Act 2000 (USA)

Hansard HC Deb 05 February 1841, vol 56, col 341–360

US Congressional Reports HH Rep No 94-1476, 94th Cong, 2nd Sess 56 (1976)

List of Figures

Fig. 2.1 Fig. 4.1 Fig. 4.2 Fig. Fig. Fig. Fig.

4.3 4.4 4.5 4.6

Fig. Fig. Fig. Fig. Fig. Fig.

4.7 4.8 4.9 4.10 4.11 4.12

Fig. 4.13

Executive roles and their exercise of authorial rights Summary of observations from performing authors Priorities in music authorship, as viewed by different roles in the Nigerian popular music industry Performing authors’ perspective on song writing Predominant concerns in the authorial process Pressure to commercialize authorship Current cultural output: ratio of written songs to released songs Methods of choosing songs for release Participants in the authorial process unveiled Performing authors and creative control of their careers Common copyright law issues for performing authors Methods of selecting performing authors Average attention of record labels to commercial indicators in the selection of songs for release Record labels’ methods of selecting songs for release

56 99 100 102 103 105 106 107 109 110 113 118 119 120

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List of Tables

Table 1.1 Table 1.2 Table 5.1

Authors’ exclusive economic rights Performers’ rights in international agreements Alienability of moral rights across some jurisdictions

39 45 155

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CHAPTER 1

The Significance of Measuring Creative Autonomy for Copyright Law

1.1

Introduction to the Problem

The central arguments this book makes are based on performing authors (singer-songwriters) and impediments to their creative autonomy, particularly in the Nigerian music industry. However, some have argued that there is no music industry in Nigeria.1 These arguments often appear to be centred on the concern for a clearly defined structure in what is

1 Bez is an alternative soul singer in Nigeria, who reportedly had this view, “Nigerian Music Industry or Nigerian Music Scene, Which One Exists?” (2012), available at http://www.nigeriamusicnetwork.com/articles/read-nigerian-music-industryor-nigerian-music-scene-which-one-exists_136.html (accessed 8 May 2013); the same view was held by Clarence Peters, a renowned music video director, Agunanna, C, “There’s Nothing Like a Nigerian Music Industry!—Clarence Peters” (2009), available at http:// chileik.wordpress.com/2009/11/08/ (accessed 9 May 2013); Steve Rhodes was a widely respected veteran musician and broadcaster in Nigeria, who argued that the industry featured minimal division of labour and no specialised departments for various business skills, Rhodes, S, “Reflections on Nigerian Music Industry”, available at http://www. livingprojectslimited.com/steverhodes/biography-music-industry.htm (accessed 10 May 2013); http://stampedecora.blogspot.com/2008/06/steve-rhodes-art-stampede-sundayjune.html (accessed 28 November 2019); Onuoha, F, “‘There Is No Music Industry in Nigeria’—Ade Bantu” (2011), available at http://www.businesseyenigeria.com/ business-news/entertainment/there-is-no-music-industry-in-nigeria-ade-bantu (accessed 8 May 2013).

© The Author(s) 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5_1

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M. W. GANI

generally referred to as the Nigerian music industry.2 In discussing the Nigerian ‘scene’, Clarence Peters who is a music video producer working in the industry, is reported to have said: There is no structure. People are just getting shows and getting paid but it’s temporal. We all know that. Everybody is getting paid by the corporate and they are always looking for the next best thing. As soon as they find it, they carry their money and move there…. Until we can find recording artists that are true to what they are doing no matter the kind of music it is and there is a market that will pay you for your work; a market that will respect your intellectual property, then we cannot lay any claims to a music industry.3

Although this book is not primarily concerned with the semantic or structural argument as to whether or not a music industry or scene exists in Nigeria, it is important to briefly define the concept of a music industry in order to set the background for the issues this book will consider. The notion of a popular music industry has been conceptualised as a set of processes, which feature the fusion of ‘capital, technical and musical arguments… [in] a form of communication which determines what songs, singers and performances are and can be’.4 The international music industry is also traditionally described as comprising of the three subsystems of recording, publishing and live music,5 but there is nothing to indicate whether the underdevelopment of any of these subsystems invalidates the designation of the term ‘industry’. Despite the criticism that suggests there is no ‘music industry’ in Nigeria, Clarence Peters’ description of the Nigerian music industry bears similarities with Frith’s,6 as they both feature competing interests in the 2 Nwokocha, U and Aluko, S, “Nigeria: A Case for Multiple Collecting Societies for the Nigerian Entertainment Industry” (2010), available at http://www.mondaq.com/x/ 102580/Copyright/A+Case+For+Multiple+Collecting+Societies+For+The+Nigerian+Ent ertainment+Industry (accessed 3 May 2013). 3 Agunanna, C, “There’s Nothing Like a Nigerian Music Industry!—Clarence Peters”, op. cit. 4 Frith, S, Music for Pleasure (Routledge, New York, 1988), p 12. 5 Wikstrom, P, The Music Industry: Music in the Cloud (Polity Press, Cambridge and

Malden, 2009), p 49. 6 Agunanna, C, “There’s Nothing Like a Nigerian Music Industry!—Clarence Peters”, op. cit.

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3

interactions between creative and corporate- commercial elements. Essentially, the interactions between these two elements are the basis on which this book explores and analyses creative autonomy within copyright law. The book identifies the extent to which copyright law influences the interactions between the creative elements performing authors (also referred to as singer-songwriters),7 and corporate elements record label executives.8 It then shows how the dynamics of such relationships can affect the creative autonomy of performing authors. While creative autonomy for performing authors is the central concern of this book, empirical evidence collected for the purpose of this book suggests that the issue also has national economic significance.9 This book depicts how affronts to the creative autonomy of performing authors can result in reduced cultural output, and in turn, result in an industry that is unable to reach its full economic potential. This book makes the case for creative autonomy by using a broad, two-pronged approach: the first five chapters of the book investigate the unique interplay between the creative and commercial elements of popular music industries, and culminate in an analysis of creative autonomy within copyright theory. The second part of this book then explores the ways in which current copyright law, unregulated business models, and recording contract policies contribute to the fragile existence of creative autonomy for performing authors in the Nigerian music industry. The fragility of creative autonomy may be considered a naturally associated problem in popular music industries worldwide. However, in establishing the justification for this book, this chapter will illustrate the significance of undertaking this study, particularly on the Nigerian popular music industry. For the purpose of clarity, the scope and limitations of the book are specified in this chapter, and the sources and materials used are also discussed. The methodology and approach used in collecting and analysing the data used in this book will be explained, and the chapter will establish an overview of key elements within copyright law that directly pertain to the music industry. 7 Infra, Sect. 1.2.2; the term “singer-songwriters” is often used in pop-culture parlance, to refer to individuals in the music industry who function in the dual roles of performer and author; (authors are often referred to as composers). 8 Record label executives represent the capital and technical aspects of popular music production, Frith, S, Music for Pleasure, op. cit., p 12. 9 Infra, Sect. 4.5.1.

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M. W. GANI

1.2

Illustration of the Problem

The central concern of this book is the creative autonomy of performing authors in the Nigerian popular music industry.10 The problem for performing authors plays out in what may be described as a three-tiered mannera. Uniform sounds and the interplay between creative and commercial elements in the music industry; b. The ‘performing author’ and the intersection between creating and performing a work; and c. The role of copyright in relation to creative autonomy. 1.2.1

Uniform Sounds and the Interplay between Creativity and Commerce

With regard to the dynamics of the interaction between creativity and commerce, one view conceives of both concepts as being opposed in principle, while another view considers commercial prospects and rewards as a motivating factor in creative endeavour, and yet another considers commerce and creativity as functionally intertwined and inseparable.11 Be that as it may, the adoption of any of these concepts may depend on varying individual circumstances where performing authors’ views may differ from the views of record label executives, in degree if not in substance.12 Notwithstanding the foregoing, academic investigation may be necessary when the products of this interaction appear or sound homogenous and hardly distinct from each other. In this regard, blog articles and chat forums on Nigerian music industry have, at various points, been unanimous in their criticism of Nigerian popular music as having a

10 The research questions for this book are discussed subsequently in this chapter, infra, Sect. 1.5. 11 Negus, K, and Pickering, M, Creativity, Communication and Cultural Value (Sage, London, Thousand Oaks, et al., 2004), p 47. 12 Infra, Sect. 4.5.1.

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THE SIGNIFICANCE OF MEASURING CREATIVE AUTONOMY …

5

uniform sound and creative approach.13 In the earlier part of this decade, trends in music creativity were criticised thusSave for a few Urban musical artists like 2Face, MI… amongst a few others that have found a way of making music that’s both critically and commercially acclaimed, the rest of the artists are caught up in the loop of having to choose between compromising their standards and cashing in, or staying true to the art and wallowing in penury. The third option which is not so much an option since only a select few can function in this regard, is balancing the act by making music that can serve both purposes.14

In the same vein, it has been asserted that the beats and backing tracks for many Nigerian popular songs also sound the same,15 and the lyrics of

13 In discussing the music scene in 2012, Inienger argues that ‘it became monotonous and stale, fans complained about loss of excitement towards “Nigerian Music” and at some point it began to look like music coming out of Nigeria was about to peak out due to this stagnation’, Inienger, V, “Progress: 13 Things Nigerian Artists and the Nigerian Music Industry Need to Improve on in 2013” (2013), available at http://www.jaguda.com/2013/01/07/progress-13-things-nigerian-artists-and-the-nig erian-music-industry-need-to-improve-on-in-2013/ (accessed 3 April 2013). Around the same time, Yomi Black observed that ‘they all sound alike and hide under auto tune and sample beats’; he responded to the problem by initiating a radio and online show intended at objectively reviewing Nigerian popular songs, “A Letter from Yomi Black: Why I Do Radio Hit Show” (2012), available at http://radiohitshow.tumblr.com/post/329590 30825/a-letter-from-yomi-black-why-i-do-radiohit-show#disqus_thread (accessed 3 April 2013). The same concern has been expressed on Nigerian chat forums, “Nigerian Music Is Sounding the Same: Same Beat!” (2010) Nairaland Forum, available at http://www. nairaland.com/474824/nigerian-music-sounding-same-same#6342740 (accessed 3 April 2013); Ewoma, U, “The Industry: Problems with the Nigerian Music Industry” (2013), available at http://www.lumeviews.com/2013/03/20/the-industry-problemswith-the-nigerian-music-industry/ (accessed 3 April 2013). 14 Layode, D, “Bring Back the Listening Habit” (October 12, 2012) Nigerian Sounds Editorial, available at http://nigeriansounds.com/archives/10708 (accessed 9 April 2013). 15 However, Ewoma does not consider this phenomenon problematic as reference is made in his article to a similar phenomenon in the Jamaican music industry. The difficulty with accepting the rationalization of this writer is that this assessment of the Jamaican music scene is made without any analysis of the veracity of this trend in Jamaica, or its effects on the economics of the Jamaican music industry. It also does not include any scholarly references on the Jamaican music industry, Ewoma, U, “The Industry: Problems with the Nigerian Music Industry”, op. cit.

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many songs have been described as duplicates of each other.16 Explaining this trend, some think that the uniformity of the sound may be a reflection of the urgency in making financial gain among some artists, as well as at the corporate levels of music business.17 Furthermore, the reason for the similarity of sound has been attributed to structural problems of the industry that give rise to the menace of piracy, which in turn, introduces and popularises peculiar values in music. In this regard, Larkin argues that piracy creates its own artistic values to which compliance is demanded from the creative individuals in the societies in which piracy thrives.18 The rationale for homogenous music from an industry appears multifaceted, but there may indeed be cause for concern when artists feel pressured to alter the creative direction of their work in an effort to conform to commercial trends. While it may be argued that some artists, like Dbanj and Terry G, who appear to have switched the creative direction of their careers to the more popular genre of Afro-Pop may actually be aligning with their authentic authorial intentions in doing so,19 the problem for this book is the reverse of this situation and its prevalence. It appears that while the careers of some artists in the industry are based on 16 “Commercialism… the Gift and Curse of Nigerian Music Industry” (2012), available at http://dashysofresh.blogspot.co.uk/2012/07/commercialism-gift-and-curseof.html (accessed 9 April 2013). 17 Inienger, V, “Progress: 13 Things Nigerian Artists and the Nigerian Music Industry Need to Improve on in 2013”, op. cit.; Layode, D, “Bring Back the Listening Habit”, op. cit.; Ewoma, U, “The Industry: Problems with the Nigerian Music Industry”, op. cit. 18 Larkin, B, Signal and Noise; Media, Infrastructure, and Urban Culture in Nigeria (Duke University Press, Durham and London, 2008), p 218; Nevertheless, what had previously been known as copyright piracy in the Nigerian music industry appears to have been transformed into a legitimate marketing and distribution scheme with artists and record labels exchanging distribution rights in their work for monetary payments, infra, Sect. 3.3. The legality, objectivity and verifiability of the processes employed by these marketers appear doubtful at best, “Pirated Movies and Music from Alaba Market Used to Be Found Across the Whole of Nigeria” (2012), available at http://www.colorsmagazine. com/stories/magazine/85/story/alaba-piracy-industry (accessed 19 April 2013); Layode, D, “Bring Back the Listening Habit”, op. cit.; Tade, O and Akinleye, B, “We Are Promoters Not Pirates: A Qualitative Analysis of Artists and Pirates on Music Piracy in Nigeria” (2012) 6 (2) International Journal of Cyber Criminology, pp 1014–1029, p 1019. 19 Dbanj and Terry G have been cited as examples of Nigerian artists whose creative personalities reflect Afro-Pop music, and they have both built successful careers in this genre even though their careers initially commenced with unsuccessful projects in the RnB genre, Layode, D, “Bring Back the Listening Habit”, op. cit.

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what they independently want to sing and portray, many others may be engaged in creative directions that they have been pressured to adopt. Comments about the industry thus suggest the presence of an interplay between creative and commercial elements that appear to be embroiled in a form of rivalry. It is the effect of this rivalry on the creative autonomy of artists that forms the motivation for this book. It may be surmised that the rivalry between creative and commercial elements in the determination of songs to release as part of an artist’s music career is primarily played out in the authorial process. This dilemma may be more acutely experienced by authors who also perform their original works as popular artists. The next subsection will therefore consider the intersection between creating and performing a musical work, as it may be necessary to define the central role in the authorial exercise that results in popular music. 1.2.2

The ‘Performing Author’ and the Intersection between Creating and Performing a Work

Mr (Justice) Arnold identifies some issues in the business of recorded music that may pose complexities for copyright law, one of which, pertinent to this book, acknowledges that there are different methods of creating a work.20 With regard to creation, he asserts that creation of musical works may occur by composition distinct from performance, or by composition effected through performance.21 In addition to these identified methods, however, composition that occurs distinctly from performance may be made with the intention of personal performance. In relation to this third angle, Nigerian copyright law defines the author of a musical work as ‘the creator of the work’,22 and the bundle of rights that constitute the author’s copyright include the right to ‘perform the work in public’.23 In light of the acknowledged fusion of the role of composers and performers in popular music, this book refers to the fused 20 Arnold, R, “Reflections on the Triumph of Music: Copyrights and Performers’ Rights in Music” (2010) 2 Intellectual Property Quarterly, pp 153–164, p 156; he also asserts that there are different methods of fixation, the implications of which are discussed further, infra, Sect. 6.2.2. 21 Ibid., p 156. 22 Section 51 (1), paragraph 4, Copyright Act C28, LFN 2004 (Nigeria). 23 Section 6 (1) (a) (i–ix) Copyright Act C28, LFN 2004 (Nigeria) provides for the

general nature of copyright in music by specifying a list of exclusive rights, and the exercise

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role as the ‘performing author’, and particularly focusses on authors who create musical works with the intention to personally perform them.24 Popular music industry parlance may colloquially refer to people in this role as ‘singers-songwriters’, and the role may be further understood by Hyde’s argument that inherent in the creative exercise is the desire to express it and to share it.25 It has been asserted that there is only one real deprivation, I decided this morning, and that is not to be able to give one’s gift to those one loves most… The gift turned inward, unable to be given, becomes a heavy burden, even sometimes a kind of poison. It is as though the flow of life were backed up.26

of the combination of these rights with particular emphasis on performing rights, may constitute the description of a “performing author”6. General nature of copyright (1) Subject to the exceptions specified in the Second Schedule to this Act, copyright in a work shall be the exclusive right to control the doing in Nigeria of any of the following acts, that is(a) in the case of a literary or musical work, to do and authorise the doing of any of the following acts(i) reproduce the work in any material form; (ii) publish the work; (iii) perform the work in public; (iv) produce, reproduce, perform or publish any translation of the work; (v) make any cinematograph film or a record in respect of the work; (vi) distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement; (vii) broadcast or communicate the work to the public by a loudspeaker or any other similar device; (viii) make any adaptation of the work; (ix) do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (i)–(vii) of this paragraph. The rights of authors under copyright law are further elucidated, infra, Sect. 1.8.2. 24 The ability of such persons to execute musical performances of their works is assumed

and is not questioned in this book. 25 Hyde, LW, The Gift: How the Creative Spirit Transforms the World (Canongate, Edinburgh, New York, et al., 2006), p 148. 26 Sarton, M, Journal of Solitude, cited in Hyde, LW, The Gift: How the Creative Spirit Transforms the World, op. cit., p 148.

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Accordingly, where an author of musical works is restricted from performing songs they have authored, the import of Hyde’s assertion is that there may be both individual and cultural ramifications. Such restrictions may occur when a performing author in contract with a record label is required to obtain the label’s approval for the performance and release of songs during their contractual engagement. In this regard, the focus on the role of the ‘performing author’ in this book is based on the intersection between creating a musical work and performing it as dual parts of a career in the popular music industry, and how the one may influence the other. The role of the performing author as a creative player in the popular music industry is further emphasised in Chapter 2 of this book.27 1.2.3

Copyright and the Status Quo

The question of copyright’s role or responsibility in the interaction between commercial and creative components of popular music authorship may then be asked,28 especially in light of the apparent importance placed on creative autonomy by copyright law and its justification theories.29 The problem is whether there are certain aspects of copyright law that are capable of undermining the creative autonomy of performing 27 Infra, Sect. 2.3.2.3. 28 This is because copyright law is purportedly primarily centred on the role of the

author; it has been argued that authorship ‘is arguably the most central, and certainly the most resonant, of the foundational concepts associated with Anglo-American copyright doctrine,’ Jaszi, P, “Toward a Theory of Copyright: The Metamorphosis of ‘Authorship’” (1991) 1991 (2) Duke Law Journal, pp 455–502, p 455; It has also been asserted that ‘copyright [is]- a legal regime that is supposed to define the rights controlled by creators and their delegates’, Liebowitz, SJ and Watt, R, “How to Best Ensure Remuneration for Creators in the Market for Music? Copyright and Its Alternatives” (2006) 20 (4) Journal of Economic Surveys, pp 513–545, p 513; this is evident in the legal position of the author as the first owner of copyright prima facie, Section 10 (1) Copyright Act C28, LFN 2004 (Nigeria); the author’s life is also the framework upon which the computation of copyright duration is made, First Schedule, Copyright Act C28, LFN 2004 (Nigeria); moreover for the purpose of this book, it may be relevant to note that the inclusion of moral rights in the framework of copyright law suggests that the law attributes importance to the safeguarding and preservation of the integrity of authorial expression, Section 11 Copyright Act C28, LFN 2004 (Nigeria); the importance of authorial autonomy has been part of early parliamentary discourse on the duration of copyright law, HC Deb 05 February 1841, vol 56, col 341–360. 29 The concept of creative autonomy in the bifurcated deontological and consequentialist copyright justification theories will be discussed in further detail in Chapter 5 of

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authors in the course of contractual relations with record labels. This book analyses this question through the lens and experiences of performing authors in the Nigerian popular music industry. This book’s investigation of copyright’s applied effects on creative autonomy is conducted in an argument of three sequences. Firstly, it queries the level to which executive decisions of record labels are influenced by commercial factors. Analysing the data collected for this book,30 it also questions the influence of record label executives on the creative processes of performing authors. Secondly, considering the realities of the Nigerian music industry, the book explores copyright justification theories to highlight the primacy of creative autonomy within copyright theory. In the process, it questions the sufficiency of competing author-centric deontology and economic consequentialism, and the practicality of a fused, middle-line approach will be emphasised.31 Thirdly, the book explores elements of copyright law and contract terms that record labels typically utilise, which may stifle the creative autonomy of performing authors. The positive link in each of the three sequences confirms that in practical terms, copyright law can have a causal influence on the creative autonomy of performing authors. In this way, this book thus establishes the need to prioritise creative autonomy for performing authors in copyright law and rhetoric.

1.3

Significance of this Book

In discussing the significance of undertaking research on creative autonomy, particularly in the Nigerian popular music industry, it is necessary to briefly narrate the history and development of Nigerian popular

this book. Deontological theories are centred on a sense of sanctity in authorial expression and imply the primacy of creative autonomy, while consequentialist theories arrive at their conclusions on the basis of economic analysis of competing interests, Dutfield, G and Suthersanen, U, Global Intellectual Property Law (2nd ed, Edward Elgar, Cheltenham and Northampton, 2020), p 27; be that as it may, consequentialist theories also feature references to the importance of creative autonomy, in a way that may easily be overlooked by proponents of consequentialism, infra, Sect. 5.4.3.3. 30 Infra, Chapter 4. 31 Jaszi, P, “Toward a Theory of Copyright: The Metamorphosis of ‘Authorship’”, op.

cit., p 502; infra, Sect. 5.4.

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music in the period between the mid-1990s and 2014.32 The developments in this period are the basis on which the arguments in this book are made, and this is because the era appears to have served as a defining moment for the industry’s structure as well as its creative style and values. With reference to the developments in creative style, the earlier part of this era was characterised by the rise of certain Afro-Pop sensations such as Junior and Pretty.33 The genre of music they created was initially called ‘Fufu Flavour’,34 but appears to have now become known as ‘Afro-Pop’, ‘Nigerian Hip Hop’, or ‘Naija Hip Hop’.35 Afro-Pop has been described

32 Since 2014, the internationalisation of Nigerian Afro-Pop has become more apparent.

In 2019, there appeared to be a trend of foreign recording companies signing on Nigerian talent, and exploring inroads to Nigerian markets, Abumere, PI, “Eyeing Big Money in Nigerian Music” (2018) BBC News, available at https://www.pwc.co.za/en/assets/pdf/ entertainment-and-media-outlook-2018-2022.pdf (accessed 29 November 2019). 33 Junior and Pretty are generally believed to have been ‘the first Nigerians to rap in pidgin [broken English] and make the music local’. Music projects of this nature were not popular prior to the group’s debut, and having received critical and commercial acclaim from the mid 1990s until Junior’s death in 2005, they have been described as the first Afro- Hip Hop group in Nigeria, http://www.storm360degrees.com/abo ut-us/ (accessed 3 May 2013); Augoye, J, “Flashback: Junior and Pretty” (10 August 2012) Punch, available at http://www.punchng.com/entertainment/e-punch/flashbackjunior-and-pretty/ (accessed 3 May 2013); by 1994, songs like their Monica, had become nationally popular, Shonekan, S, “Nigerian Hip Hop: Exploring a Black World Hybrid”, in Charry, E (ed), Hip Hop Africa: New African Music in a Globalizing World (Indiana University Press, Indiana, 2012); according to Obi Asika who is the CEO of Storm 360, a West African entertainment company, his Company discovered the duo of Junior and Pretty on their television show “Clapperboard Weekend Raps” in 1992, Oduok, U, “Ladybrille Exclusive: Interview with Storm Records’ Music Mogul, Obi Asika”, available at http://www.evancarmichael.com/African-Accounts/1508/Ladybrille-ExclusiveInt erview-with-Storm-Records-Music-Mogul-Obi-Asika.html (accessed 3 May 2013); Other Nigerian artists and bands whose music defined the era include the Remedies, Plantation Boys, Alex O and Alex Zitto, Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World” (2011), available at http://www.nigeriavillagesquare.com/guest-articles/nig eria-music-conquers-africa-eyes-the-world.html (accessed 3 May 2013); Abiola, A, “The Power and Glory of Naija Music” (2011), available at http://www.africanews.com/site/ The_Power_and_Glory_of_Naija_Music/list_messages/37685 (accessed 4 May 2013). 34 The name Fufu Flavour was significant of the ease with which the beats in this genre appealed to the common Nigerian on the streets, Ademola, O, “Pioneers of Naija Hip Hop Music” (2011), available at http://www.nigerianbestforum.com/index.php?topic= 146431.0 (accessed 4 May 2013). 35 “Naija” is a word that is colloquially used in reference to “Nigeria” among Nigerians.

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as a fusion of older West African genres like ‘High-Life’ and ‘Afro-Beat’ with the African American influence of Hip Hop culture.36 As it relates to industrial developments during this era, artists employed new marketing and distributing methods by using the local distribution networks that had been responsible for the growth of the Nigerian movie industry, Nollywood.37 Larkin demonstrates that this ingenious and unusual dependence on local marketers gradually became more widespread and evolved to the state where it defined the aesthetic values that are now characteristic of Afro-Pop.38 The industry appears to have subsequently experienced numeric growth in its creative output, despite structural challenges and adjustments, and appears to be benefitting from increasing continental and global significance.39 The significance of analysing the question of the effect of copyright on the creative autonomy of the performing author in the Nigerian music industry, as opposed to some other popular music industries in Europe or the USA is based on the developmental needs of Nigeria’s burgeoning international efforts.40 For example, the music industries in

36 Shonekan, S, “Nigerian Hip Hop: Exploring a Black World Hybrid”, op. cit.; Ademola, O, “Pioneers of Naija Hip Hop Music”, op. cit. 37 Ademola, O, “Pioneers of Naija Hip Hop Music”, op. cit. 38 Larkin, B, Signal and Noise; Media, Infrastructure, and Urban Culture in Nigeria,

op. cit., p 218; the use of local marketers appears to have now become the norm, and it has been asserted that they are the kings of the music business, Ademola, O, “Pioneers of Naija Hip Hop Music”, op. cit. 39 Oduok, U, “Ladybrille Exclusive: Interview with Storm Records’ Music Mogul, Obi Asika”, op. cit.; “Why Nigerian Artists Dominate BET’s ‘Best International Act’ List”, available at http://www.thisisafrica.me/music/detail/1700/Why-Nig erian-artists-dominate-BET’s-%22Best-International-Act%22-list (accessed 8 May 2013); “Nigerian Artists Dominate MTV African Music Awards [MAMA]” (2010), available at http://www.gistexpress.com/2010/12/12/nigerian-artists-dominate-mtv-africanmusic-awards-mama/ (accessed 8 May 2013); “Nigeria Dominates Channel O Music Video Awards” (2012), available at http://allafrica.com/view/group/main/main/id/000 21037.html (accessed 8 May 2013). 40 Abumere, PI, “Eyeing Big Money in Nigerian Music”, op. cit.; in terms of Nigeria’s international efforts, African bloggers have observed that Nigerian artists appear to dominate the awardees and the list of nominees of the Black Entertainment Television’s awards for the “Best International Act”, “Why Nigerian artists dominate BET’s ‘Best International Act’ list”, op. cit.; “Total Recall: Why Naija Musicians are Dominating Bet Awards?” (2012), available at http://ebuzzafrica.com/news/total-recall-why-naija-musici ans-are-dominating-bet-awards/267 (accessed 8 May 2013); Tucker, B, “Africa is a Category” (2012), available at http://africasacountry.com/2012/05/30/africa-is-a-category/ (accessed 8 May 2013).

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the USA and many in the UK already have reasonably defined administrative structures,41 and have a history of commercial success in international markets.42 This may be due to the technological advancements responsible for the genesis of the music industry that were first made or introduced in these economies.43 Moreover, with regard to the international markets for UK popular music, the international commercial success of the UK popular music industry may be traced to the footprints of colonialism during which period certain aspects of British culture gained popularity in the former colonies.44 41 “Music Industry Structure”, available at http://www.generator.org.uk/node/58 (accessed 5 April 2013); UK Music, “Response to: Path to Strong, Sustainable and Balanced Growth” (2010), available at http://www.ukmusic.org/assets/general/UK_ Music_response_to_HM_Treasury_and_BIS_on_The_Path_to_Strong_Sustainable_and_ Balanced_Growth_December_2010.pdf (accessed 5 April 2013); “An Overview of the Recorded Music Industry—Market Structure, Major Players & Technological Changes” (2010), available at http://themusicbusinessnetwork.wordpress.com/2010/05/08/anoverview-of-the-recorded-music-industry-market-structure-major-players-technological-cha nges/ (accessed 5 April 2013); a concise depiction of the structure of the US music industry has been highlighted, “An Overview of the Recorded Music Industry—Market Structure, Major Players & Technological Changes” (2010), available at http://the musicbusinessnetwork.wordpress.com/2010/05/08/an-overview-of-the-recorded-musicindustry-market-structure-major-players-technological-changes/ (accessed 5 April 2013); furthermore, the structure of the music industry in the US and the developments in its responses to technological advancements have been identified and discussed, Alexander, PJ, “New Technology and Market Structure: Evidence from the Music Recording Industry” (1994) 18 (2) Journal of Cultural Economics, pp 113–123, pp 114 and 121. 42 “IFPI Global Music Report 2019: State of the Industry”, available at https://

www.ifpi.org/news/IFPI-GLOBAL-MUSIC-REPORT-2019, p 17 (accessed 24 February 2020); “IFPI Digital Music Report 2014: Lighting Up New Markets”, available at http:// www.ifpi.org/downloads/Digital-Music-Report-2014.pdf, p 6 (accessed 20 July 2014); “IFPI Digital Music Report 2013: Engine of a Digital World”, available at https://www. ifpi.org/downloads/dmr2013-full-report_english.pdf, p 6 (accessed 8 May 2013). 43 Day, T, A Century of Recorded Music; Listening to Musical History (Yale University

Press, New Haven and London, 2002), p 10 and p 13; the development of recording techniques such as the use of wax cylinders, pantographic methods, and the reverse metal master stamper have been identified as central to the development of recorded music, Alexander, PJ, “New Technology and Market Structure: Evidence from the Music Recording Industry”, op. cit., p 117. 44 Despite the wealth of experience and commercial success of such developed industries,

the digitisation of music distribution and sales jolted operations and altered the business strategies in the traditional structure of the music industry, Smith, T, “A Brief History of the Music Industry” (2012), available at http://www.musicthinktank.com/mtt-open/ a-brief-history-of-the-music-industry.html (accessed 12 May 2013); “IFPI Global Music Report 2019: State of the Industry”, op. cit., p 15.

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Furthermore, while the digitisation of music sales has been an issue of international concern and innovation,45 the matter of creative autonomy in generating musical content is perhaps the more important issue when considering the question of sustainable development for the Nigerian music industry, which is currently making inroads to global relevance. This book consequently considers the issue of creative autonomy because of its direct relationship to available music content and the accompanying concern of its variety. With regard to the significance of conducting comparative studies, analysing the relationship of copyright to the creative autonomy of performing authors in the popular music industries of any two countries, may stretch the parameters of this book beyond a single, primary research problem. The differences in research problems for two popular music industries may be polarised by the developmental statuses of the economies to which they belong. All the same, the common legal heritage that Nigeria has with the UK and the USA in relation to common law traditions, will enable this analysis of the Nigerian situation to draw from UK and USA examples. Different angles to the question of intellectual property’s effects on creativity have been discussed in Anglo-American academic work, whereas in contrast, academic and judicial authorities on copyright law from Nigeria appear to be rather scant.46 Thus, academic research on the economics of copyright law in Nigeria and the authorial independence of performing authors may be novel.47

45 The plummeting of CD sales and the rise of internet and mobile consumption of music has necessitated new business models, “Music Industry Structure”, available at http://www.generator.org.uk/node/58 (accessed 9 May 2013); UK Music, “Response to: Path to Strong, Sustainable and Balanced Growth”, op. cit.; Smith, T, “A Brief History of the Music Industry”, op. cit. 46 Asein, JO, Nigerian Copyright Law and Practice (2nd ed, Books and Gavel Ltd., 2012), p 35 and p 38; (11 July 2013) Interview with Bankole Sodipo, Professor of Law, Babcock University, Nigeria, and Partner, G.O. Sodipo & Co. Nigeria. 47 The sources and materials used in this study will be discussed, infra, Sect. 1.6 of this book.

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One compelling factor behind the focus of this book on Nigeria as opposed to the music industries of any other developing country was the perceived comparative ease in accessing players in the music industry at various levels of commercial success to participate in the study. However, while the focus of this book is on the Nigerian popular music industry, the observations and recommendations made here may be relevant for the development of popular music industries in other developing countries, and particularly for African nations. It had initially been thought that ‘most countries in Africa have not historically been significant markets for the international music industry’.48 However, with more effective methods of digital distribution made available, the IFPI (the International Federation of the Phonographic Industry) reported a growing wave of A&R (Artist and Repertoire) activity by multinational recording companies on the Continent.49 The IFPI’s most recent report projects dynamic and competitive growth for music industries in Sub-Saharan Africa in light of the proliferation of local digital service providers and the growing connectedness of the younger generation.50 Despite the IFPI’s agenda for expansion to African markets, local efforts at maximising industrial potential can also be observed in such countries. Efforts are actively being made by stakeholders in the Nigerian music industry towards implementing apposite business structures and solutions for the functionality and expanding internationalisation of its reach.51 In the course of such deliberations, it is therefore pertinent for performing authors in Nigeria and in other countries with music industries at similar levels of development, to promote the implementation of policies aimed at preserving creative autonomy, thus diversifying and increasing their offerings. Otherwise, the concentration of music distribution networks by large recording companies with vast operations

48 “IFPI Digital Music Report 2014: Lighting Up New Markets”, op. cit., p 38. 49 Ibid., p 39. 50 “IFPI Global Music Report 2019: State of the Industry”, op. cit., p 23. 51 Ayeni, A, “Nigerian Entertainment Conference 2014: To Hell with Cliques and

Camps” (23 April 2014) Nigerian Entertainment Today, available at http://thenet.ng/ 2014/04/nigerian-entertainment-conference-2014-to-hell-with-cliques-and-camps/com ment-page-1/#comment-265522 (accessed 9 May 2014); Ihidero, C, “Chris Ihidero Unedited: #NECLive 2014…Here We Go Again” (23 April 2014) Nigerian Entertainment Today, available at http://thenet.ng/2014/04/chris-ihidero-unedited-neclive-201 4here-we-go-again/ (accessed 9 May 2014).

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can negatively affect competition in the music industry and can hinder diversity in a way that results in the proliferation of homogenous music.52 It has even been argued that record labels and recording companies do not engage in artistic or authorial activity as described in copyright law, but function in more of a manufacturing capacity, producing and distributing the authorial works of authors and performers.53 Local efforts in music production, and the creative autonomy of performing authors are thus essential elements for a diversified music industry that seeks to safeguard sustainable development.

1.4

Hypothesis and Sub-questions

The hypothesis on which this book is based is whether the business interactions between performing authors and record label executives, as enabled by copyright law, serve to stifle the creative autonomy of performing authors in the Nigerian popular music industry. Accordingly, in approaching this question the following sub-questions have been formulateda. Who determines what songs are released to the public? And does the process of such determination serve as an external influence on the authorial process?54 This book discusses the traditional structure of the popular music industry and highlights the unique development of the Nigerian structure. It then conducts and analyses empirical research by sampling the opinions of performing authors. By contrasting the data from performing authors against data recorded from record label executives and other stakeholders in the music industry, the book identifies corroborations in the contextual analysis of data from all three subject groups that is revealing and instructive. In this way, this book will identify the ways in which performing authors’ creative autonomy may be jeopardised. Addressing this question

52 Alexander, PJ, “New Technology and Market Structure: Evidence from the Music Recording Industry”, op. cit., p 121. 53 Thomas, D, Copyright and the Creative Artist (Institute of Economic Affairs, London, 1967), p 34. 54 Infra, Chapter 4.

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will also emphasise the importance of empirical evidence in formulating arguments for the justification for copyright.55 b. What is the rhetoric on creative autonomy in copyright justification theories?56 In this regard, the book will consider the deontological and consequentialist theories upon which justificatory arguments for copyright law have been made. The book will identify the concept of creative autonomy that is latent in deontological theories, and will then lean on a consequentialist framework in order to recommend creative autonomy as an additional dimension to the economic analysis of copyright law. The book will thus introduce a fused approach to the theory of copyright law. One of the concerns of this book is to provide a framework through which copyright policies may be tailored specifically for the developmental needs of the Nigerian popular music industry and by extension, the Nigerian economy. This is with particular regard to ensuring increased variety and volume in the cultural output of the Nigerian popular music industry. It has been noted earlier in this introductory chapter that legal and social parallels may be observed between the Nigerian situation and the popular music industries of other countries.57 To that extent, the arguments in this book may be deemed relevant for such countries. c. If record labels and industry formulas are observed to influence performing authors’ creative processes, is there any aspect of copyright law that facilitates this trend?58 The book examines some of the business practices of recording companies under the lens of copyright law and identifies certain aspects of the law and industry customs that can affect the creative autonomy of performing authors. In then proffers legislative recommendations targeted at preserving creative autonomy, and recommends occupational guidelines for performing authors who may not instinctively understand 55 Infra, Sect. 4.1. 56 Infra, Chapter 5. 57 Supra, Sect. 1.3. 58 Infra, Chapters 6–8.

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copyright law or appreciate the significance of some clauses in their recording contracts. At the initial stages of their careers, performing authors may be faced with pecuniary challenges that make it difficult for them to engage the services of a lawyer, and this book aims to provide a starting point for performing authors to engage more meaningfully in negotiating copyright exploitation contracts. It is intended that the observations and arguments made in the book will have implications on policy making in the Nigerian popular music industry, conceptual formulations in economic analysis of copyright law, and the contractual relationships formed by performing authors.

1.5

Scope and Limitations

One of the challenges for academic research in copyright law is the observance of the importance of detailed, unambiguous use of language. This is because the specific legal connotations attached to various words in copyright law may differ from common colloquial usage of such words. In this regard, it will be difficult to expatiate on each word used in the arguments that this book makes. However, this section will attempt to clarify the central purpose of this book by distinguishing it from other issues in copyright law which, although briefly alluded to, will not be the principal focus of this work. It will also delineate the specific geographical field and legal jurisdiction in which the arguments of this book are made. The Nigerian popular music industry is the field on which this book is based. For the purpose of this book, it is therefore important to note that reference to the Nigerian music industry is restricted to the popular music industry, and excludes Nigerian traditional music, Nigerian classical compositions and folk music.59 The jurisdiction of law in this analysis is Nigerian. However, the book will include references to the UK and USA, which are both common law countries with arguably more developed

59 Some of these other genres such as Nigerian folk and traditional music are often

folkloric in nature, and the identification of an author or a group of authors may be difficult. As a result, copyright analysis of such genres may entail distinct methods from the methods adopted in this book, Seeger, A, “Traditional Music Ownership in a Commodified World”, in Frith, S and Marshall, L (eds), Music and Copyright (2nd ed, Edinburgh University Press, Edinburgh, 2004), p 158.

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and internationalised popular music industries.60 This is for the purpose of demonstrating the distinct roots of Nigeria’s copyright law rhetoric, the apparent structural and creative direction of its music industry, and its contract framework.61 The book will also make occasional reference to aspects of civil law droit d’auteur, which is operational in German and French law for the purpose of establishing the centrality of authorial autonomy in copyright.62 With respect to the creative autonomy of performing authors, data obtained from Nigeria in the course of writing this book shows that the role of the performer and author most often overlap. Therefore, reference to creative autonomy will be concerned with the creative processes of authoring a song, and the considerations made in the performing author’s choice of songs to perform.63 This book is not primarily concerned with the issue of incentivising creative activity or with the investigation of creativity as a distinct theme. Also, it is not essentially concerned with performers’ rights as a subject and will not discuss the subject in much detail.64 It should be noted that despite the focus on the performing author’s role, this book is not an exegesis on the performing rights of performing authors. In this regard, it simply identifies that performing rights are one of the rights within the bundle of exclusive authorial rights under copyright law.65 Rather, on the basis of the idea that the exercise of creative autonomy by performing authors may reduce the trend of homogenised popular music,66 the book analyses the problems confronting performing authors’ creative autonomy.

60 The assumption that the popular music industries in the UK and the USA are more developed than the Nigerian popular music industry is based on established industrial structures and market size; supra, Sect. 1.3. 61 The discussion on contracts will be with essentially centred on common law notions, infra, Chapter 8. 62 Infra, Sects. 1.8.2 and 5.3.4. 63 Infra, Sect. 4.2.5; the level of musical skill expressed in the performances of authors

who perform their works is not questioned in this book. 64 Infra, Sect. 1.8.4. 65 Infra, Sect. 1.8.2. 66 The problem of homogenous cultural output in the Nigerian popular music industry is discussed above, supra, Sect. 1.1.

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There are some issues in copyright law to which this book will refer, but will not analyse in detail. For instance, it will discuss certain aspects of moral rights, particularly with reference to the practical effects of the purported restriction of its transmission under Nigerian copyright law.67 However, moral rights in themselves are not considered within the main ambit of this book. Furthermore, in the section of this book which discusses the requirement of fixation under copyright law and its possible effects on performing authors, it is observed that copyright does not exist in ideas, but in their fixed format.68 While it may be argued that trade secrets are an example of intellectual property existing in ideas,69 this book will not attempt a consideration of trade secrets, or a verification of this notion. It is significant to note that the effect of the internet and digitisation on the business of music are issues that have generated significant concern, and academic and industrial attention.70 As a result, new business models and modified legal regulations have been explored in order to secure the economic contributions of the music industry.71 It may be argued that the digitisation of music has implications for the ability of copyright owners to protect their works from unauthorised users, and their ability to secure compensation for their efforts. With further regard to the impact of digitisation on music business, the availability of internet access in Nigeria has vastly increased and this may have contributed positively to the emerging development of the Nigerian popular music industry. The strategic enforcement of copyright law for the purpose of safeguarding the commercial dealings in digital music may therefore be an important

67 Infra, Sects. 5.3.4 and 6.4. 68 Infra, Sect. 6.2.1. 69 Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law (The Belknap Press of Harvard University Press, Cambridge, 2003), pp 354–355. 70 IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information (IFPI, available at www.ifpi.org, 2007), p 3 and p 18; Edwards, L, “The Fall and Rise of Intermediary Liability Online”, in Edwards, L and Waelde, C (eds), Law and the Internet (3rd ed, Hart Publishing, Oxford and Portland, 2009), pp 81–83; “IFPI Digital Music Report 2014: Lighting Up New Markets”, op. cit., p 6. 71 “IFPI Global Music Report 2019: State of the Industry”, op. cit., p 6; “IFPI Digital Music Report 2014: Lighting Up New Markets”, op. cit., p 6; IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 19.

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consideration for copyright and for structural development in the Nigerian music industry. However, it does not form part of the core question of this book and it will not be explored beyond the points at which it may intersect with the focal problem of this book.72

1.6

Sources and Materials Used

In the process of researching and collecting sources for this book, challenges were encountered with respect to the quantity and availability of academic resources on copyright law in Nigeria. Nigerian case law on copyright specific to music also seemed to be few and far between, and it appeared that statistics on record sales from the Nigerian music industry were non-existent or unavailable to the public.73 The observation that Nigerian academic sources on copyright law and other aspects of intellectual property do not appear copious may be partly due to continued dependence on British jurisprudence on the subject, by virtue of Nigeria’s colonial ties with the UK.74 This is evident in the provision of the Interpretation Act which states as follows, Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900 shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.75 72 In Chapter 7 of this work, this book will question whether the business practice of scouting for new talent via the internet has any effects on the creative autonomy of performing authors, Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances (Springer, New York, et al., 2010), p 82; specifically, it will question whether this practice involves commercial undertones that go beyond the scope of musical talent. The bane is whether record labels scout purely for new musical talent, or are keen to cash in on the popularity of individuals who successfully build an internet followership. It may also be a combination of both factors with emphasis on either, infra, Sect. 7.3. 73 “Without Reliable Statistics, No Development” (2011), available at http://pmnews

nigeria.com/2011/09/21/without-reliable-statistics-no-development/ (accessed 15 May 2013). 74 Nigeria’s legal tradition is derived from the British common law system, Babafemi, FO, Intellectual Property; the Law and Practice of Copyright, Trademarks, Patents and Industrial Designs in Nigeria (Justinian Books Limited, Ibadan, 2006), p vi and p 1. 75 Section 32 (1) Interpretation Act C123, LFN 2004 (Nigeria).

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The statutory application of English case law thus has the year 1900 as a cut off mark. Despite what appears to be relatively active legislative and regulatory activity on copyright issues in Nigeria in the period since independence in 1960,76 it has been argued that litigation of disputes in this area and the resultant case laws are needed to lend further credence to copyright jurisprudence in Nigeria.77 Be that as it may, it has been noted that the use of foreign case law in copyright litigation in Nigeria is not unusual,78 although it has been established that recourse to foreign cases should be made only in the absence of local authorities.79 Accordingly, this book makes primary reference to Nigerian copyright law in its legal analysis, but also relies to some extent on Anglo-American academic resources for economic and philosophical arguments, and the discussions on the traditional structure of the music industry. It uses

76 Nigeria’s current law on Copyright was initially promulgated as the Copyright Decree of 1988. It was amended in 1992 by the by the Copyright (Amendment) Decree No. 98 of 1992, and in 1999 by the Copyright (Amendment) Decree No. 42 of 1999. The use of Decrees in the legislative history of Nigerian copyright law is characteristic of military rule that pervaded the Country until 1999. It is currently codified and referred to as Copyright Act, Chapter 28, Laws of the Federation of Nigeria 2004. For the purpose of distinguishing between the copyright laws of other countries which will be referred to in this work, it will be referred to as the “Copyright Act C28, LFN 2004 (Nigeria)”. Subsidiary regulations and orders made under Section 37 (5), Section 39 (7) and Section 41 of the Copyright Act (Nigeria) are as follows-

i. Copyright (Reciprocal Extension) Order 1972 ii. Customs and Excise (Copyright) Regulations 1973 iii. Nigerian Copyright Commission (Appointment of Copyright Inspectors) Notice 1977 iv. Copyright (Video Rental) Regulations 1999 v. Copyright (Security Devices) Regulations 1999 vi. Copyright (Optical Discs Plants) Regulations 2006 vii. Copyright (Collective Management Organizations) Regulations 2007 viii. Copyright (Dispute Resolution Panel) Rules 2007; Asein, JO, Nigerian Copyright Law and Practice (2nd ed, Books and Gavel Ltd., 2012), p 37. 77 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 35. 78 Ibid.; Plateau Publishing Co Ltd v Adophy (1986) 34 (4) NWLR 295; American

Motion Picture Export Co (Nig) Ltd v Minnesota (Nig) Ltd (Suit No FHC/L/83/1979) Unreported; Yemitan v Daily Times (Nig) Ltd (1980) FHCLR 186. 79 Ajomale v Yaduat (No 2) (1991) 5 NWLR 266; Kolawole v Alberto (1989) 1 NWLR

382.

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empirical data, collected through interviews and questionnaires, to identify the status of creative autonomy in reference to the influence of copyright law and contract terms.

1.7

Methodology

Although the major concern of this book is creative autonomy rather than creativity per se, this section will identify some of the methodological difficulties that have been encountered in earlier investigations of creativity, and will attempt to establish the reason for the focus of this book on the subject of creative autonomy, as distinct from creativity. The methodology that this book adopts in the investigation of the effect of copyright on performing authors’ creative autonomy will then be highlighted. 1.7.1

Conceptualising a Framework for Measuring Creativity

It is important to emphasise here that discussions in academic works of the nexus between copyright and creativity are not novel.80 Such endeavours may have been undertaken to show the interconnections between the two and to establish appropriate parameters for a balanced approach to copyright. All the same, it has been argued that creativity has not been paid much attention in economic analysis of copyright law.81 Demsetz 80 Demers argues that intellectual property laws such as copyright and trademarks can hinder or stimulate creativity, depending on the way individual creators of musical works respond to the creative practice of transformative appropriation, Demers, J, Steal This Music: How Intellectual Property Law Affects Musical Creativity (University of Georgia Press, Athens, Georgia, 2006), p 10; there also appears to be a significant body of economic arguments analysing whether or not copyright incentivises creativity, Breyer, S, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs” (1970) 84 (2) Harvard Law Review, pp 281–351; Plant, A, “The Economic Aspects of Copyright in Books” (1934) 2 Economica, pp 167–195; Hurt, RM and Schuchman, RM, “The Economic Rationale of Copyright” (1966) 56 (1/2) The American Economic Review, pp 421–432; Boldrin, M and Levine, DK, “Does Intellectual Monopoly Help Innovation?” (2009) 5 (3) Review of Law and Economics, pp 991–1025. 81 Demsetz argues that the custom by which economists seem to touch only lightly on the subject of creativity is not recent and that the issue of creativity has been of bigger concern to sociologists and psychologists, Demsetz, H, “Creativity and the Economics of the Copyright Controversy” (2009) 6 (2) Review of Economic Research on Copyright Issues, pp 5–12, pp 5–7; similarly, it has been argued that standard economics of copyright, in its concern with incentivizing creative activity, does not include consideration for certain aspects of the arts which may be considerably pertinent for artists and for

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argues that in the period when economics developed into a distinct academic discipline, research and analysis were predominantly commonly concerned with free market economics, private property and prices.82 In the preoccupation of economic analysis with the question of price and the interactions between demand and supply, it may have therefore been thought that the consideration of seemingly esoteric values such as creativity would complicate analysis and result in ‘imperfect information’.83 In this regard, Demsetz advises caution, drawing attention to the argument that continuing economic analysis of copyright law on the premise of price as a fixed concept, fails to take into account that unlike with physical chattels, supply for copyright goods is essentially determined by the creation of original works.84 He further notes that in economic analysis, old and new works are ‘imperfect substitutes’.85 With regard to theories and methods for analysis of copyright and creativity, Cohen argues that the strict adoption of deontological and economic theories as the only analytical approaches in grappling with the issues may exclude the application of other approaches which may perhaps provide more beneficial interpretations of the interaction between

cultural production as a whole. Towse asserts that standard economics of copyright does not take particular cognisance of the arguments that copyright regimes may increase the cost of authoring new works and lessen their supply. For the purposes of cultural policy formulation, she also argues that it is pertinent to identify and establish whether copyright actually benefits creators of copyright works, Towse, R, “Copyrights and Artists: A View from Cultural Economics”, op. cit., pp 567–569. 82 Demsetz, H, “Creativity and the Economics of the Copyright Controversy”, op. cit.,

p 7. 83 Demsetz, H, “Creativity and the Economics of the Copyright Controversy”, op. cit., p 7; Cohen asserts that the challenge for the analysis of creativity in copyright scholarship raises methodological problems and is threefold. First, there is the question of whether to assess creativity on the basis of deontological, rights- based arguments or on the basis of consequential analysis which would consider ‘broader societal patterns’. Secondly, determining ‘the appropriate metric for evaluating creative output’ may be problematic. Thirdly, she asserts that such studies would entail ‘a required pre- commitment to abstraction- to the paramount importance of the idea’, Cohen, JE, “Creativity and Culture in Copyright Theory” (2007) 40 (3) UC Davis Law Review, pp 1151–1206, p 1152. 84 Demsetz, H, “Creativity and the Economics of the Copyright Controversy”, op. cit.,

p 8. 85 Ibid.

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copyright and creativity.86 Considering the use of social and cultural theories in the analysis of the interrelationships within the issues of creativity, culture and copyright, Cohen argues that the focus is not solely on individuals as the primary factor of creativity.87 Rather, such methods of analysis expound upon the concept of creativity as a decentralised model that features the dynamic cooperation of individual creators and sociocultural patterns. These methods are hinged on the argument that the ineffable nature of creativity notwithstanding,88 the creative processes of each individual creator is unavoidably linked to their socio-cultural situation and experiences.89 Consequently, conceptualising creative activity in this way may be beneficial ‘in cases where interests in economic stability and cultural mobility must be balanced’.90 Assessing the practicality of adopting this concept of creativity and socio-cultural methods for analysis of performing authors in this book, it is accepted that socio-cultural factors influence individual creators in their creative processes and contribute to the shaping of their creative personalities. However, policies based on this model of creativity may need to establish what the exact parameters of such interactions are and should be, in order to propose suitable guidelines. This may pose practical difficulties because of the dynamic nature of such interactions. Furthermore, in the interrelationship between individual creators and socio-cultural factors, economic investigation may be required to identify the dominance of

86 The application of different approaches may involve the adoption of methodologies from the social sciences, Cohen, JE, “Creativity and Culture in Copyright Theory”, op. cit., p 1153. 87 Cohen argues that artistic and intellectual processes essentially comprise of the elements of expression, the physical characteristics of the materials on which copyright works are fixed, and the spatial distribution of cultural resources, ibid., p 1177. 88 Negus, K, and Pickering, M, Creativity, Communication and Cultural Value, op. cit.,

p 3. 89 Cohen, JE, “Creativity and Culture in Copyright Theory”, op. cit., p 1178. 90 In this regard, she argues that while the doctrine of fair use in copyright law may

already take into consideration socio- cultural notions of creativity, further consideration of the issue may provide a more balanced approach to copyright policy, ibid., p 1154 and p 1204.

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each contributor especially in cases where cultural output in a specific geographical area appear homogenous.91 In the discussions on methods for analysing the relationship between copyright and creativity, the use of cultural economics has also been canvassed as a distinct angle to ‘standard’ economic arguments for copyright.92 In this regard, it has been opined that cultural economics does not have a ‘single dominant paradigm or overarching intellectual theme that binds all its elements together’; rather, it has been described as an approach that is primarily empirical.93 Thus, it has been defined as the ‘application of economics to the arts, heritage and the cultural industries, and one of the subjects that it deals with is the supply of works of art, music, literature, etc.’94 One of the arguments of cultural economics, therefore, is that considering the economic importance of creativity and the creative industries in present times,95 ‘evidence-based policy calls for an understanding of the underlying behavioural relationship between creativity and the incentives copyright offers’.96 Be that as it may, a problem for cultural economics is that in seeking to analyse creativity, it encounters the challenge of ascribing distinct measurable values for creativity in economic terms.97

91 The Nigerian popular music industry has been described by some critics and social commentators as having a homogenous creative approach and incidents of identical musical efforts, supra, Sect. 1.1. 92 Towse, R, “Copyrights and Artists: A View from Cultural Economics”, op. cit., p

567. 93 Blaug, M, “Where Are We Now on Cultural Economics?” (2001) 15 (2) Journal of Economic Surveys, pp 123–143, p 124. 94 Towse, R, “Copyrights and Artists: A View from Cultural Economics”, op. cit., p

567. 95 Towse argues that the importance of creativity in the twenty-first century economy has led to emphasis on the importance of creative industries. However she argues further that the benefits of creative industries as tools for economic development may lead to reduced emphasis on the individual creator, and increased focus on the entrepreneurship their role enables, Towse, R, “Creativity, Copyright and the Creative Industries Paradigm” (2010) 63 (3) Kyklos, pp 461–478, p 462; it may be argued that economic policies built on such patterns may eventually be redundant when the focus is removed from the individual creator. This is because it may be argued that creative activity is essentially centred on the role of individuals. 96 Ibid., p 462. 97 Ibid., p 464.

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It indeed appears that there is difficulty in finding a unanimously accepted definition for creativity, as well as consistent measurements for creative output and creative labour.98 ‘First, any effort to articulate the experience of the creative process pushes us to the edge of what words can say’.99 Thus, the difficulty in analysing creativity in relation to copyright must be acknowledged. 1.7.2

Measuring Creative Autonomy

From the subchapter above, it is clear that analysis of music creativity may be fraught with problems in choosing appropriate methodology for such studies and conceptual problems in relation to the definition of creativity.100 Sternberg and Lubart acknowledge this difficulty and its implications, but make a poignant assertion that is pertinent to this book…Creative people are ones who are willing and able to “buy low and sell high” in the realm of ideas…. Buying low means pursuing ideas that are unknown or out of favour but that have growth potential. Often, when these ideas are first presented, they encounter resistance. The creative individual persists in the face of this resistance and eventually sells high, moving on to the next new or unpopular idea.101

This assertion intrinsically suggests that creativity requires the autonomy of the creator, and that autonomy may be realised through conflict. In this regard, it has been noted ‘that there is, in most cases we encounter, a real author with intentions, beliefs, and a set of ethical and musical values that they wish to convey to listeners’.102 Therefore, the idea of the author may be conceived by assessing ‘how and in what ways the various components 98 Ibid., p 464 and p 469; Demsetz, H, “Creativity and the Economics of the Copyright Controversy”, op. cit., p 7. 99 Negus, K, and Pickering, M, Creativity, Communication and Cultural Value, op. cit.,

p 5. 100 Supra, Sect. 1.7.1. 101 This has been defined as Sternberg and Lubart’s investment theory of creativity,

Sternberg, RJ and Lubart, TI, “The Concept of Creativity: Prospects and Paradigms” in Sternberg, RJ (ed), Handbook of Creativity (Cambridge University Press, Cambridge, New York, et al., 1999), p 10. 102 Negus, K, “Authorship and the Popular Song” (2011) 92 (4) Music and Letters, pp 607–629, p 629.

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that make up an author’s activities and identities are conceived, constituted, combined, and communicated’.103 This book analyses creative autonomy on the basis of the notion that the creative independence of performing authors may reduce the incidence of homogenous cultural output. On the basis of the data collected from performing authors, this book will proffer a working definition of the concept of creative autonomy.104 In analysing the data collected for this work, the book employs simple economic formulas such as comparisons, averages and population in order to extract the information that is subsequently analysed through the lenses of principles in copyright law and contract law.

1.8

A Brief Overview of Copyright in Music

Although this book analyses issues in copyright law, it is not intended to serve as a compendium on the law and practice of copyright in Nigeria. However, there are certain elements in substantive copyright that directly relate to the music industry and to the analysis that this book makes, and this section will introduce these concepts. To start with, the category of works in which copyright may exist under Nigerian copyright law is a closed, specific list. The Act provides as follows1. (1) subject to this section, the following shall be eligible for copyright(a) literary works; (b) musical works; (c) artistic works; (d) cinematograph works; (e) sound recording; and (f) broadcasts.105

103 Ibid. 104 Infra, Sect. 4.2.5. 105 Section 1 (1) Copyright Act C28, LFN 2004 (Nigeria).

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The popular music industry may be described as an institution of copyright law by virtue of the extent to which the central activities within the industry are dependent on the protection of copyright law in order to achieve revenue.106 In relation to authorship in popular music, copyright protection subsists in literary works, musical works and sound recording.107 In music industry parlance, this may be understood as the lyrics of a song, the music or tune of the song and the first tape, disc, chip or recording device onto which a performance of the song is recorded for the purpose of duplication and sale.108 Moreover, there are essential elements that such works must satisfy in order to qualify to enjoy the exclusive rights that copyright confers, and the same section stipulates the requirements of originality and fixation in a ‘definite medium of expression’.109 In the Act’s requirement of originality and in the list of author’s exclusive rights, the concept of authorial autonomy is visible as an integral thread within copyright law. This subchapter therefore considers how the requirement of originality under the law alludes to the importance of creative autonomy. It also highlights the exclusive rights of the author under Nigerian copyright law side by side with multi-jurisdictional and international approaches.110 It will then identify the distinction between authorship and ownership under copyright law, and will briefly discuss the rights of the performer as a background to the analysis of the performing author with which this book is concerned. It is important to note that certain elements of copyright law are common among various countries either by virtue of being signatories 106 Infra, Chapter 2. 107 Section 1 (1) Copyright Act C28, LFN 2004 (Nigeria); Section 1 (1) CDPA 1988

(UK) op. cit; Section 102 (a) Copyright Act 1976 (USA) also contains similar provisions in relation to literary, musical and sound recording works, except that copyright in musical works which have accompanying lyrics are grouped together as one work in the Act. 108 This is often referred to as the “Master”, although the exact definition of the term in recording contracts may feature other criteria such as length of the selection and commercial satisfaction of the record label, Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 45. 109 Section 1 (2) (a) and (b) Copyright Act C28, LFN 2004 (Nigeria); however, this chapter will only discuss the requirement of originality as it is an aspect of the law in which undertones of creative autonomy may be visible. 110 This will be done with specific reference to Nigerian law, and similar positions in UK and USA federal copyright law will be indicated.

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to the Berne Convention,111 or as a result of their relationship to English common law.112 1.8.1

The Requirement of Originality under Copyright Law

The requirement of originality is so central to copyright, that any adjustments of its standard will directly determine the quantity and quality of works that may be protected by copyright.113 Accordingly, it has been argued that ‘what is at stake in any definition or redefinition of originality is the coverage of the copyright monopoly and the balance between copyright owners and users at its most basic level’.114 It may be wrongly assumed that in practice, the application of the requirement of originality precludes two identical or closely similar works from simultaneous copyright protection. In this way, it may be thought that the requirement of originality in copyright law exists to prevent the problem of homogenous cultural works, and consequently to secure the protection of creative autonomy. However, upon careful consideration of the application of this requirement under copyright law, this assumption is tenuous. This section therefore considers the standard of originality as prescribed by Nigerian copyright law in order to show whether the practical application of the requirement of originality suffices as a means of protection for creative autonomy, or perhaps subtly hints at the importance of the concept. As will be seen, the absence of distinctive indications for the protection of creative autonomy within the requirement of originality, will thus imply the necessity for further academic attention to creative autonomy, which this book undertakes. In discussing the standard of originality under Nigerian copyright law, this section will make reference to UK and US case law because of the apparent dearth of Nigerian case law on the subject. Firstly, it may be asked whether for copyright purposes, originality is a question determined by fact or by law. The question is significant because the technicality of a legal definition may leave factual loopholes by which

111 Berne Convention for the Protection of Literary and Artistic Works 1886. 112 Davies, G and Rauscher auf Weeg, HH, op. cit., p 10. 113 Abrams, HB, “Originality and Creativity in Copyright Law” (1992) 55 (2) Law and Contemporary Problems, pp 3–44, p 5. 114 Ibid., p 5.

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similar works may seek copyright protection. The legal requirement for originality is succinctly provided in the Nigerian Act as followsA literary, musical or artistic work shall not be eligible for copyright unless sufficient effort has been expended on making the work to give it an original character.115

In interpreting this stipulation, it has been asserted that ‘the standard of originality is a question of fact and degree’.116 Further explanation or definitions for the requirement of originality are not given in the Act, but it has been noted that Nigerian case law ‘does not require original or inventive thought, but only that the work should not be copied and that the author should have expended a sufficient amount of labour, skill and judgement’.117 This is similar to the position that had initially been obtainable under UK case law.118 The reliance on effort, skill and judgment in determining originality for the purpose of copyright was also emphasised more recently in Hyperion Records Ltd v Sawkins.119 In an assertion bearing undertones of concern for creative autonomy, it has been noted that within this theoretical concept of copyright-originality, creativity, especially artistic creativity, so that the work is shaped according to the author’s individual personality, plays no role.120 115 Section 1 (2) (a) Copyright Act C28, LFN 2004 (Nigeria). 116 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 77. 117 Ibid., p 75; Ladan v Sha Kallo Publication Co Ltd (1972) NCLR 428; University of

London Press Ltd v University Tutorial Press Ltd (1916) 2 Ch 601; this judicial interpretation, however, bars expressions of stark simplicity such as the drawing of a line, British Northrop Ltd v Texteam Blackburn Ltd (1973) FSR 241; in this regard, it has been distinguished from the requirements of novelty and inventive steps which are required under patent law, Davis, J, Intellectual Property Law (3rd ed, Oxford University Press, New York, 2008), p 28; Rahmatian, A, “Originality in UK Copyright Law: The Old ‘Skill and Labour’ Doctrine Under Pressure” (2013) 44 (1) International Review of Intellectual Property and Competition Law, pp 4–34, p 5. 118 Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd (1994) FSR 723 (Ch D); Express Newspapers Plc v News (UK) Ltd (1990) FSR 359 (Ch D). 119 (2005) EMLR 688. 120 Rahmatian, A, “Originality in UK Copyright Law: The Old ‘Skill and Labour’

Doctrine Under Pressure”, op. cit., p 5.

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In most recent legal developments, however, the question of originality in the UK now leans towards the standards prescribed by European Council Directives.121 With regard to photographs, databases and computer programmes, this standard establishes the sole criterion for originality, in the requirement that the work must be ‘the author’s own intellectual creation’.122 This was further established in the Infopaq case,123 as well as in other cases subsequently decided by the CJEU.124 However it has been established by the UK Court of Appeal that the effect of such cases does not extend this definition of originality as a general standard to works that are not specified in the Directives,125 and it has been asserted that such an interpretation of the Infopaq case is not within the proper role of the CJEU.126 Be that as it may, it has been argued that for the UK, a more constructive interpretation of originality may be established by focussing on the judgment of the authorThe author must apply her judgement to make selections and choices when she creates the work, and through these choices the author expresses original creative ability and thus stamps her personal touch.127

121 Art 1 (3), Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs; art 6, Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights; art 3(1), Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases; Gervais, DJ, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law” (2002) 49 (4) Journal of the Copyright Society of the USA, pp 949–981, p 958. 122 The UK Act reflects the same criterion in determining originality for literary works that include databases, Section 3A (2), Copyright, Designs and Patents Act, 1988 (UK); Interlego AG v Tyco Industries, Inc [1989] AC 217 (PC); this interpretation of originality, with regard to databases, has been made international by virtue of article 10 (2) TRIPS Agreement 1994. 123 Infopaq International A/S v Danske Dagblades Forening [C-5/08] (2009) ECDR

16. 124 Painer v Standard Verlags GmbH [C-145/10] (2012) ECDR 6; Football Dataco Ltd and others v Yahoo! UK Ltd and others [C-604/10] (2012) Bus LR 1753. 125 Newspaper Licensing Agency Ltd v Meltwater Holding BV (2011) EWCA Civ 890. 126 Rahmatian, A, “Originality in UK Copyright Law: The Old ‘Skill and Labour’

Doctrine Under Pressure”, op. cit., p 10. 127 Ibid., p 30; in the absence of more nuanced local case law on the subject, this view of originality may be instructive and applicable in Nigerian courts.

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Under federal copyright law in the USA, the threshold of the exercise of skill, effort and judgement is important for the question of originality,128 however, the presence of a modicum of creativity has been established as a crucial constitutional requirement for the establishment of originality and thus copyright.129 In the case of Sheldon v Metro-Goldwyn Pictures Corporation,130 the court held that ‘if by some magic a man who had never known it were to compose a new Keats’ ode on a Grecian Urn, he would be an ‘author’, and, if he copyrighted it, others might not copy that poem’.131 Additionally, in clarifying the determinants of originality, the US courts held thusTo be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.132

Despite the foregoing, it has been noted that the standard for originality in the USA may also differ between subject matters,133 as before the Feist case, it had distinguished between works described as ‘low

128 In practical terms, it has been noted that this requirement of skill and judgement is not applied to ideas but to the expression of ideas, Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 91; the implications of the distinction between ideas and expression for the creative autonomy of performing authors will be discussed subsequently in Chapter 6 of this book, infra, Sect. 6.2. 129 Feist Publications, Inc v Rural Telephone Service Company, 499 US 340 (1991), par

11; Gervais, DJ, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law”, op. cit., p 955. 130 Sheldon et al. v Metro-Goldwyn Pictures Corporation [1940] 309 US 390; English

case law holds similarly in Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444. 131 Sheldon et al. v Metro-Goldwyn Pictures Corporation, op. cit. 132 Feist Publications, Inc v Rural Telephone Service Company, op. cit., p 345, par 10;

this bears similarity to the UK position which suggests that originality does not necessarily mean complexity of concept, Matthewson v Stockdale [1806] 12 Ves 270; Gyles v Wilcox [1740] 2 Atk 151; Football League Ltd v Littlewoods Pools Ltd [1959] Ch 637; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273; in these cases simple works which seem to lack aesthetic attributes such as calendars, abridgements and trade statistics were determined to be copyrightable by courts. 133 Ginsburg, JC, “The Concept of Authorship in Comparative Copyright Law” (2002) 52 (4) DePaul Law Review, pp 1063–1092, p 1078.

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authorship works’ on the one hand, and ‘high authorship works’ on the other.134 Nevertheless, the interpretation of the requirement of originality for either type of work has been established as necessitating the author’s exercise of creative discretion in the authorial process.135 While the author’s creative discretion is significance for the question of originality in both the UK and the USA, the concept appears as the central theme in the civil law concept of originality.136 This is evident in the French droit d’auteur system, which requires that a work must show elements of the author’s personal creative choices,137 and there are similar provisions in other civil law countries such as Belgium and Switzerland.138 Yet again, it has been noted that such ‘systems regard the originality requirement as elastic and relative and dependent on the category of work’.139 This is evident in the German concept of ‘kleine münze’ and the French concept of ‘petite monnaie’, which recognise a minimal threshold for originality in relation to works such as ‘telephone directories, lists, tables of radio and television programmes and other compilations’.140 By virtue of this concept which means ‘small change’, ‘certain… works

134 Rahmatian, A, “Originality in UK Copyright Law: The Old ‘Skill and Labour’ Doctrine under Pressure”, op. cit., p 14. 135 This position was clarified and established in a case that involved the selection and arrangement of data, Feist Publications, Inc v Rural Telephone Service Company, op. cit., par 10. 136 It has been noted that under such systems, the author is protected by the author’s right as a person (in its conception a kind of human right and therefore everything the author creates and which bears the features of the author’s personality also obtains protection. Rahmatian, A, “Originality in UK Copyright Law: The Old ‘Skill and Labour’ Doctrine Under Pressure”, op. cit., p 16. 137 Article L 112- 1 Intellectual Property Code 1992 (France); French copyright law is codified in the Code de la Propriété Intellectuelle 1992 (as amended 2012), translated and made available at http://www.wipo.int/wipolex/en/text.jsp?file_id=180336 (accessed 10 March 2013); Ginsburg, JC, “The Concept of Authorship in Comparative Copyright Law”, op. cit., p 1079; Gervais, DJ, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law”, op. cit., p 969. 138 Ginsburg, JC, “The Concept of Authorship in Comparative Copyright Law”, op. cit., p 1080; Gervais, DJ, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law”, op. cit., p 970. 139 Rahmatian, A, Copyright and Creativity: the Making of Property Rights in Creative Works, op. cit., p 56. 140 Ibid., p 57.

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of practical use and of rather commonplace appearance are regarded as having just sufficient originality that they can be granted protection’.141 From the foregoing, it may be assumed that the requirement of the author’s personal creative choice as a requisite element of originality, by its literal reading, is interpreted to mean that the law recognises, or at least presumes the creative autonomy of the author.142 However, in reference to reliance on the requirement of originality to control the proliferation of homogenous musical works, it is clear that by virtue of sheer coincidence, two works may be identical to each other without one having copied from the other, thus allowing similar works to claim copyright protection.143 On the other hand, it can also be the case that two musical works are so similar to each other that listeners are able to draw the inference that one was inspired by or copied from the other, and Nigerian copyright law does not exempt such works from protection ipso facto.144 Such similarity may be achieved through the use of similar lyrics that are rearranged to qualify for copyright protection. It may also be achieved through the use of closely related music that may have similar chord progressions and beats with only minor variations or additions. Such was the decision in the Designer Guild case where Lord Hoffman held that the similarity of two items was not in issue, once it had been established that one had copied a substantial part of the work of the other.145 Accordingly, the assumption that the requirement of originality in copyright law may prevent similar items from protection and thus regulate the homogenisation of cultural products, has no foundation in the law or in practice.

141 Ibid. 142 Creative autonomy, albeit in a different context, has been described in the assertion that ‘the choice of when and how to express oneself seems particularly strategic in the overall determination of the shape and character of one’s life’, Waldron, J, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property” (1992–1993) 68 (2) Chicago- Kent Law Review, pp 841–888, p 876. 143 Sheldon et al. v Metro-Goldwyn Pictures Corporation, op. cit. 144 Section 1 (4) Copyright Act C28, LFN 2004 (Nigeria) provides that ‘a work shall

not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work’. 145 Designers Guild Ltd v Russell Williams (Textiles) Ltd [trading as Washington DC] (2001) ECDR 10.

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In the context of the Nigerian popular music industry, for instance, when certain beats become popular on radios and in clubs, it appears that performing authors and record labels become keen to cash in on the frenzy associated with such beats. As such, although Azonto beats started in Ghana, since they became popular all over West Africa many performing authors appear to have released songs using merely mild variations of the same beats.146 Whether such similarities will boarder on the copyright definition of originality, or will constitute copyright infringement,147 may differ from case to case. In the UK case of Baigent v Random House Group Ltd,148 despite the alleged similarity in the themes of Dan Brown’s The Da Vinci Code and an earlier book published by Baigent,149 the Court of Appeal held that ‘what was taken from HBHG amounted to generalised propositions at too high a level of abstraction to qualify for copyright protection’.150 Whereas in Ravenscroft v Herbert,151 it was held that ‘by taking not only the claimant’s language, but also identical incidents of real and occult history, the defendant had appropriated to himself the ‘skill and labour’ of the author’.152

146 “Azonto: Let’s Be Wary of the Nigerians” (2013), available at http://radiomidas. com/azonto-lets-be-wary-of-the-nigerians/ (accessed 10 February 2014); Forson, FK, “Azonto Rivalry Between Ghana, Nigeria” (2013), available at http://www.modernghana. com/music/21244/3/azonto-rivalry-between-ghana-nigeria.html (accessed 10 February 2014); this practice appears distinct from sampling beats on other songs where only a portion of the sampled song is used for the new track. 147 Definitions of civil infringement may overlap with the issue of originality in the sense that a work that constitutes an infringement of a copyright work may not be considered original to the extent that it constitutes an infringement, Masterpiece Investments Ltd & Anor v Worldwide Business Media Limited & Ors (1977) FHCL 496; Adenuga v Ilesanmi Press (1991) 5 NWLR 82; in the case of Island Records Ltd & Ors v Pandum Technical Sales and Services Ltd & Anor (1993) FHCL 318, with reference to musical issues and the infringement of sound recordings, the court held that the mere presence of tape reproduction technology in the defendant’s possession did not constitute proof that the defendant had used it to reproduce the plaintiff’s tapes. The scenario in this case, however, is one that may be of particular importance for performing authors in the conduct of their profession and this will be discussed, infra, Sect. 6.2. 148 [2007] EWCA Civ 247. 149 The Holy Blood and the Holy Grail (HBHG) had been published in 1982 by the

claimants, Baigent and Leigh. 150 Baigent v Random House Group Ltd, op. cit. 151 [1980] RPC 193. 152 Ibid.; Davis, J, Intellectual Property Law, op. cit., p 49.

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From the different rulings in these cases, it may be surmised that the uncertainty, time and cost involved in the judicial processes required to decide questions of infringement and originality, may not be optimal for the dynamic and time-sensitive commercial needs of the popular music industry. For the purposes of disputes arising over the requirement of originality, where the lack of originality is identified in a musical work, the evidentiary burden is on the person asserting lack of originality to prove same.153 In cases for infringement, this may therefore entail presenting to the court evidence of a copyright work that had been created prior to the date of the new work in issue.154 It will also be required that the person asserting lack of originality in the new work must prove on the preponderance of evidence, that the author of the new work saw or listened to the older work, and copied it whether wittingly or sub-consciously.155 Accordingly, the litigation process for such matters may be costly and time consuming, and the sparseness of Nigerian case law on the issue appears to reflect some reluctance to copyright litigation on this subject, and in general. The application of the requirement of originality is foundational to copyright law, but it is evidently not an effective means of proscribing homogenous cultural works, and is not a sufficient alternative to the concept of creative autonomy for performing authors. 1.8.2

An Overview of Authorial Economic Rights

Copyright has been defined as ‘a grant of the aid of state coercion to the creators of certain “intellectual products” to prevent for a period of

153 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 174; Adejimi v 3C Promotions and Consultancy Ltd, Suit no FHC/ L/ 26/ 89. 154 Poznanski v London Film Production Ltd [1936–1945] Mac CC 107. 155 In this regard, following the case of Francis, Day and Hunter Ltd v Bron (1963)

Ch 587, for a plaintiff to establish lack of originality in an alleged infringing work, courts have required evidence of the ‘copying of a substantial part of the copyright work’ and the establishment of a causal connection between the two works, Davis, J, Intellectual Property Law, op. cit., p 43; under Nigerian case law, it has been established that infringement can be the result of subconscious copying where it can be shown that the author of the alleged infringing work had been exposed to the copyright work, American Motion Pictures Export (Africa) Inc v Sounds of Music Ltd, Suit no FHC/ L/ 40/ 81.

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years the “copying” of [certain] products’,156 subject to certain specified exceptions.157 Additionally, the existence of copyright in a work places other restrictions on non- right holders besides copying. The legal definition for copyright can be understood from the provisions in copyright law for ‘exclusive economic rights’, also described as acts restricted by the existence of copyright in a work. It is important to note that although the wording of the law vests such rights exclusively in the ‘owner’ of a copyright work, copyright laws also generally stipulate that the ‘author’ is the first owner of copyright in a work, subject to specified exceptions in the law.158 For the purpose of the arguments that this book will make, this section will succinctly identify exclusive authorial economic rights in a tabular form. It will highlight the provisions in Nigerian copyright law, and will juxtapose these rights against the rights provided by the copyright laws of the UK and US federal copyright law, which are both common law countries. It will also depict the positions in civil law countries using German and French examples, and will highlight the standard for these rights under certain international copyright instruments - the Berne Convention,159 the WTO TRIPS Agreement,160 and the WIPO Copyright Treaty (Table 1.1).161 1.8.3

Authorship and Ownership

Nigerian copyright law provides that the author of a work shall be the first owner of the copyright in the work,162 thus inferring that the exclusive 156 Hurt, RM, and Schuchman, RM, “The Economic Rationale of Copyright” (1966) 56 (1/2) The American Economic Review, pp 421–432, p 421. 157 The exceptions to copyright may vary from country to country, and there does not appear to be concerted effort at international harmonisation of limitations and exceptions. Article 13, TRIPS Agreement, 1994 confirms this by the provision that ‘members shall confine limitations or exceptions to exclusive rights to certain 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’. Be that as it may, limitations and exceptions to copyright are not central to this book and will not be discussed further. 158 Infra, Sect. 1.8.3. 159 Berne Convention 1886. 160 TRIPS Agreement 1994. 161 World Intellectual Property Organisation (WIPO) Copyright Treaty 1996. 162 Section 9 (1) Copyright Act C28, LFN 2004 (Nigeria); this provision is subject to

specified exceptions, Section 9 (2) and (3) Copyright Act C28, LFN 2004 (Nigeria).

S 6 (1) (a) (ii) publish; (vii) broadcast or communicate via loud speaker or similar medium

Communication to the public To communicate to the public, s 20

S 106 (5), to display the work publicly

To perform, show S 106 (4) and or play, s 19 (6)

S 6 (1) (a) (iii)

Performing Rights

Distribution

S 106 (1) Reproduction, s 6 To copy, s 17 (1) (a) (i); recording, s 6 (1) (a) (v) cinematograph film or record S 6 (1) (a) (vi) To issue copies to S 106 (3) the public, s 18

USc

Reproduction

UKb

Nigeriaaa

Authors’ exclusive economic rights

Exclusive authorial economic rights in music and literary works across jurisdictions

Table 1.1 Francee

Recitation, performance and presentation, art 19 Involvingperformance art 19; broadcasting art 20; video and audio recordings art 21; and communication of broadcasts art 22

Distribution, art 17

Art L 122-2 (here, performance is described as communication to the public via any medium)

L 122-2 (2) described as “telediffusion” Art L 122-2

Reproduction, art Art L 122-1 16

Germanyd

THE SIGNIFICANCE OF MEASURING CREATIVE AUTONOMY …

(continued)

Art 11bis (1) Berne; art 8 WCT

Art 11 (1) Berne

Art 6 WCT

Art 9 Berne, reproduction in any form

TRIPS, Berne and WCTf 1

39

Rental and Lending Rights

Translations, To make an adaptations and adaptation, s 21 their uses, s 6 (1) (a) (iv), (viii) and (ix) S 6 (1) (a) (vi) Rent or lend to the public, s 18A

Adaptation Rights

UKb

Nigeriaaa

(continued)

Exclusive authorial economic rights in music and literary works across jurisdictions

Table 1.1

S 106 (3)

S 106 (2)

USc

Art 17 and 27

Art 23

Germanyd

Art L 122-4

Francee

Art 11 TRIPS; art 7 WCT

Art 12 Berne; art 8 Berne, right of translation

TRIPS, Berne and WCTf

40 M. W. GANI

Transferrable ‘by assignment, by testamentary disposition, or by operation of law’, s 11 (1)

Transfer

Transferrable by assignment, testamentary disposition, operation of law, s 90

UKb

Transferrable by contract, operation of law or bequest, s 201 (d) (1)

USc

Non-assignable, but exploitation rights grantable, art 31; transmissible only in execution of testamentary disposition, art 29

Germanyd TRIPS, Berne and WCTf

Patrimonial Transferrable (economic) rights Art 2 (6) transferrable with Berne or without payment, art L 122-7

Francee

d The German Copyright Act is officially known in German as Urheberrechtsgesetz, (UrhG) 1965 (amended 1998). It will be referred to in this book using the abbreviation “UrhG”, and is translated and made available at http://www.wipo.int/wipolex/en/details.jsp?id=1034 e Intellectual Property Code 1992 (France) f WIPO Copyright Treaty, 1996 is hereafter referred to in this book as the WCT. With respect to the Berne Convention, article 2 (2) of the TRIPS Agreement, 1994 upholds the obligations of the Berne Convention for member states of both conventions

a Copyright Act C28, LFN 2004 (Nigeria); supra, Sect. 1.2.2 b Copyright, Designs and Patents Act, 1988; hereinafter referred to as CDPA 1988 (UK) c Copyright Act 1976 (USA)

Nigeriaaa

Exclusive authorial economic rights in music and literary works across jurisdictions

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rights of owners under copyright law exist primarily for the benefit of the author. Additionally, the question of authorship of literary and musical works appears to be a question of fact and law,163 and with reference to music, the law provides that the author of a literary or musical work shall mean ‘the creator of the work’.164 As it relates to the exclusive authorial rights depicted above,165 it is important to note that copyright allows for trade and transfers of these rights from the author to a new owner. Specifically, the law provides for the transmission of copyrights in whole or in part.166 This book is concerned with the interactions between performing authors and record labels, and it shows how the transmission of rights in the industry and the legal landscape for such transactions can have effects on the creative autonomy of performing authors.167 Ultimately, the book will make a case for the express recognition of creative autonomy within copyright law. 1.8.4

Performers’ Rights

This book is primarily concerned with copyright in the context of creative autonomy for ‘performing authors’ who have been earlier described as authors who perform their musical works.168 All the same, the role of performers as creative contributors in the popular music industry will be discussed succinctly in Chapter 3.169

163 Asein, JO, Nigerian Copyright Law and Practice (Nigerian Copyright Commission, Abuja, 2004), p 75. 164 Section 51 (1) par 4 Copyright Act C28, LFN 2004 (Nigeria); the authorship of sound recordings and the complexities surrounding the definition of authorship in sound recordings will be discussed subsequently, infra, Sect. 6.3.2. 165 Supra, Sect. 1.8.2. 166 Copyright may be transmitted ‘by assignment, by testamentary disposition or by

operation of law, as moveable property’, Section 11 Copyright Act C28, LFN 2004 (Nigeria); supra, Sect. 1.8.2; Section 11 (7) also provides for the transmission of copyright for future works not yet in existence. 167 The interaction between literary and musical copyrights on the one hand, and sound recording copyrights will be explored, infra, Sect. 6.3.3. 168 Supra, Sect. 1.2.2. 169 Infra, Sect. 2.3.2.2.

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Even though this book does not deal with performers’ rights in great detail, discussions about performers in the popular music industry often include performers’ rights alongside copyright. The rights of performers have evolved from simply being a right to control whether or not certain performances can be recorded,170 to a recognised personal property right which may be assigned.171 The duration of the right for performers under Nigerian law is ‘50 years from the end of the year in which the performance first took place’,172 and the right may be assigned to collecting societies for ease of administration and the collection of royalties.173 The need for the existence of this right may have become more apparent with the widespread private use of copying technology.174 It has been argued that a song is only made relevant by its performance and that the law should reflect higher consideration for performers’ rights than for copyright.175 However, this argument may be deemed tenuous when it is considered that a song or musical work may be performed and exploited by numerous singers on numerous occasions. Moreover, whenever the performances of a song are being exploited, the song itself is invariably being exploited. With regard to creative autonomy, the question may be asked whether the existence of performers’ rights ensures creative autonomy for performing authors in their dealings with record labels, and this 170 Article 7 (1) Rome Convention 1961. 171 Supnik, P and Faulder, S (eds), Enforcement of Copyright and Related Rights

Affecting the Music Industry (Maklu Publishers, Apeldoorn and Antwerpen 1993), p 186; Towse, R, “The Singer or the Song? Developments in Performers’ Rights from the Perspective of a Cultural Economist”, op. cit., p 749; provisions for these rights are set out in Section 26 Copyright Act C28, LFN 2004 (Nigeria) which is in tandem with articles 6 and 7 WIPO Performances and Phonograms Treaty 1996, of which Nigeria is a signatory, http://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_1.html. 172 Section 27 Copyright Act C28, LFN 2004 (Nigeria); however the EU approach to the duration of protection for performers’ rights has been extended to 70 years by article 1 (2) (a), EU Directive 2011/77/EU, amending Directive 2006/116/EC; it was implemented under the Copyright and Duration of Rights in Performances Regulations 2013. 173 Supnik, P and Faulder, S (eds), Enforcement of Copyright and Related Rights Affecting the Music Industry, op. cit., p 187. 174 Towse, R, “Copyrights and Artists: A View from Cultural Economics” (2006) 20 (4) Journal of Economic Surveys, pp 567–585, p 572. 175 Towse, R, “The Singer or the Song? Developments in Performers’ Rights from the Perspective of a Cultural Economist”, op. cit., p 752.

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issue will be addressed in further detail in Chapter 6 of this book.176 However, it is worth noting that compositions to be performed by performing authors often have to be approved by their record labels prior to performance and recording. This means that performers’ rights, which occur at performance,177 as opposed to copyright which occurs at fixation,178 arise further down in the sequence of activities in the popular music industry. Therefore, with regard to protecting creative autonomy, performers’ rights are not as effective as bargaining tool for performing authors as copyright. This may be even less so in developing economies where the system for collecting royalties may not practically distinguish between performers’ rights and the performing rights of authors. It should be noted that performers’ rights are distinct from performing rights, as performing rights are a part of the bundle of rights that constitute copyright and accrue to an author.179 Although performers’ rights are not directly pertinent to this book, except for a single point of possible intersection which will be analysed subsequently,180 it is necessary to highlight essential elements of performers’ rights as provided by the Rome Convention,181 and further enshrined under the TRIPS Agreement,182 the WPPT,183 and the Beijing Treaty.184 They are tabulated here to show the evolution of performers’ rights in international agreements, and unlike the table depicting exclusive authorial rights,185 do not highlight national legislation (Table 1.2).

176 Infra, Sect. 6.3.1. 177 Section 27 Copyright Act C28, LFN 2004 (Nigeria). 178 Section 1 (2) (b) Copyright Act (Nigeria). 179 Supra, Sect. 1.8.2. 180 Infra, Sect. 6.3.1. 181 The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) 1961. 182 Agreement on Trade Related Aspects of Intellectual Property Rights 1994. 183 WIPO Performances and Phonograms Treaty 1996. 184 Beijing Treaty on Audio-visual Performances 2012. 185 Supra, Table 1.1.

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Table 1.2 Performers’ rights in international agreements Performers’ rights

Rome convention 1961

TRIPS Agreement 1994

WPPT 1996

Beijing Treaty 2012

Regarding broadcasts, fixation and reproduction of un-fixed performances Duration

Possibility to prevent unauthorized acts, article 7 (1)

Possibility to prevent unauthorized acts, article 14 (1)

Exclusive right to authorize, article 6

Exclusive right to authorize, article 6

20 years from performance, fixation or broadcast, article 14

50 years from fixation, article 14 (5)

50 years from year of fixation, article 17 (1)

50 years from year of fixation, article 14

Attribution and integrity; minimum duration as of economic rights, article 5 Reproduction, article 7; distribution, article 8; rental, article 9; making available to public, article 10

Attribution and integrity; minimum duration as of economic rights, article 5 Reproduction, article 7; distribution, article 8; rental, article 9; making available to public, article 10; broadcasting and communication to public, article 11 National laws or individual agreements may provide performers the right, article 12 (3)

Moral rights

Regarding fixed performances

Right to remuneration for commercial use of phonograms

Single, equitable remuneration payable to performers, producers or both, article 12

Performers and producers entitled to single, equitable remuneration, article 15

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1.9

Conclusion

This chapter introduced the concepts that this book explores in making the case for protecting creative autonomy in the Nigerian music industry. It established the motivation for this research study by identifying and highlighting the core problem of the book, and highlighting the significance of measuring creative autonomy for copyright purposes. With regard to the market justification for the book, this chapter also discussed the economic necessity for the study, the search for sources, and the methodology used in the book. Other preliminary issues pertinent to the arguments made here are highlighted such as the delineation of the scope of the book and a brief introduction to the jurisdiction on which the research is based. The chapter also gave a brief overview of certain substantive aspects of copyright law, with a particular focus on authors’ economic rights, and showed traces of an underlying presumption of creative autonomy for authors within the law. The next chapter will discuss the traditional structure of the popular music industry in order to highlight the peculiar role and contributions of the performing author.

CHAPTER 2

The Traditional Structure of the Popular Music Industry, and the Performing Author’s Role

2.1

Introduction

While the previous chapter introduced the importance of measuring creative autonomy for the purpose of copyright law, this chapter will establish the spatial context in which the protection of creative autonomy may become a concern. This book is centred on the Nigerian popular music industry and will depict its structure and regulation.1 However, by virtue of the inseparable link between modern popular music and the introduction of music recording equipment such as the phonogram,2 a depiction of the Nigerian industry may not be accurately made without a narration of its global origins.3 Hence, this chapter will conduct a brief overview of the traditional structure of the popular music industry. This chapter will begin by proffering a working definition of the term ‘popular music’, and in portraying the structure of the industry, it will focus on the distinction between executive roles and creative roles

1 Infra, Chapter 3. 2 Hull, GP, The Recording Industry (2nd ed, Routledge, New York and London, 2004),

p 18; infra, Sect. 2.2. 3 Modern popular music originated and developed in Europe and North America, Negus, K, Producing Pop: Culture and Conflict in the Popular Music Industry (Available under License Creative Commons Attribution- Non-commercial- No Derivatives, 2011), p 3.

© The Author(s) 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5_2

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within the industry.4 The alternative option of independent popular music production, as well as the administrative role of collecting societies will also be discussed.

2.2

Defining Popular Music

Some may argue that the academic exercise of defining the term ‘popular music’ is more of a sociological and anthropological argument, than an argument for musicologists,5 and much less for lawyers. In attempts to define popular music, it has been argued that there are no precise stylistic definitions or parameters for the term except in terms of sales and commerce.6 In this regard, while the largest markets for popular music may be Europe and North America,7 these markets are not necessarily homogenous. This means that music that may be popular among a certain group of people may not be popular to members of a different group, and these groups may be defined by age, ethnicity, gender, class and religion, among other classifications.8 Based on the foregoing, popular music has been simply defined as music that is demonstrated to be popular to certain large audiences, which 4 Infra, Sect. 2.3. 5 Burnett, R, The Global Jukebox; The International Music Industry (Routledge, London

and New York, 1996), p 36; Van Venrooij asserts that popular music involves the combination of commercial and artistic values. He also shows how the fusion of various genres into hybrids has blurred the artistic parameters for defining such genres, Van Venrooij, A, “The Aesthetic Discourse Space of Popular Music: 1985–86 and 2004–05” (2009) 37 (4) Poetics, pp 315–332, p 317; further, ‘it depends on the rapidly changing style preferences of millions’, Peterson, RA and Berger, DG, “Entrepreneurship in Organisations: Evidence from the Popular Music Industry” (1971) 16 (1) Administrative Science Quarterly, pp 97–106, p 97. 6 The choice to purchase or listen to a particular record has been described as being reminiscent of voting, Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 35; Van Venrooij, A, “The Aesthetic Discourse Space of Popular Music: 1985–86 and 2004–05”, op. cit., p 317. 7 Harker, D, “The Wonderful World of IFPI: Music Industry Rhetoric, the Critics and the Classic Marxist Critique” (1997) 16 (1) Popular Music, pp 45–79, p 51 and p 55. The statistics have, however, been shown to fluctuate, as sales in Brazil overtook the Spanish market in 1994, moreover, Harker asserts that the IFPI’s statistics do not necessarily account for the whole world, as in the past ‘it failed to produce any data on the other two-thirds of the world’s nations’. 8 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., pp 36–37; Hull, GP, The Recording Industry, op. cit., p 13.

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is made evident by their willingness to pay for it.9 However, this succinct definition may raise certain questions because, with the availability of digital music, a certain author’s works may be considered popular among a social group and yet many members of the group may have come into possession of that work without necessarily paying for it. Another concern that may be raised is that the sales statistics which serve as an indication as to what is popular are derived from the IFPI,10 the BPI,11 RIAA12 and other related bodies which are ‘internal’ industrial organisations, thereby making independent verification of their statistics difficult or impossible.13 It is doubtful that these organisations would have the relevant sales data for the Nigerian music industry, and it has been argued that they do not represent the entirety of the music industry, despite the fact that they are often portrayed as such.14 Some of the definitions proffered for popular music have been broadly classified as ‘(1) popular music as vernacular; (2) popular music as a style or genre; (3) popular music as a commercial product; and (4) popular music as a quantitative measure’.15 Whichever definition is favoured, the

9 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 35 and p 37. 10 IFPI is the International Federation of the Phonographic Industry, and it ‘represents the recording industry worldwide, with a membership comprising some 1400 record companies in 66 countries and affiliated industry associations in 45 countries. IFPI’s mission is to promote the value of recorded music, safeguard the rights of record producers and expand the commercial uses of recorded music in all markets where its members operate.’ http://www.ifpi.org/ (accessed 10 October 2013). 11 BPI is the British Recorded Music Industry and is a trade organization that represents the four major labels in the UK as well as many independent music companies. ‘BPI members account for approximately 90% of all recorded music sold in the UK, and globally the UK’s recorded music market is the third biggest.’ http://www.bpi.co.uk/ (accessed 10 October 2013). 12 The members of the Recording Industry Association of America (RIAA) are responsible for the creation, manufacture and/or distribution of approximately 85% of all legitimate recorded music produced and sold in the United States. http://www.riaa.com/ (accessed 10 October 2013). 13 Harker, D, “The Wonderful World of IFPI: Music Industry Rhetoric, the Critics and the Classic Marxist Critique”, op. cit., p 45. 14 Williamson, J and Cloonan, M, “Rethinking the Music Industry” (2007) 26 (2) Popular Music, pp 305–322, p 307. 15 Suisman, D, “Sound Recordings and Popular Music Histories: The Remix” (2011) 23 (2) Journal of Popular Music Studies, pp 212–220, p 217.

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contribution of new technologies for recording and mass producing music cannot be ignored, as they have made it possible for millions of people to participate in an identical experience,16 thus fostering mass culture. Although the popular music industry also consists of live performances and music publishing, its development was predominantly characterised by the production and distribution of recorded music,17 made possible by the invention of Thomas Edison’s phonogram in the late nineteenth century.18 Following the technological developments in recorded and play-back music, and the competing inventions of the gramophone and the radio,19 further developments were made in the use of vinyl discs, digital audio tapes, cassette tapes, compact discs, the MP3 and ‘music in the cloud’.20 ‘Music in the cloud’ refers to music stored in the virtual medium of cloud computing, such as Apple music, YouTube, MySpace, Spotify, and Facebook, among other music streaming services, as clouds on which music maybe stored and listened to.21 It is important to note that copyright protection initially covered literary and musical works, and that after the development of new technology in sound recording and music reproduction led to ease of

16 The cultural industries have been described as industries built around “experiences”,

Wikstrom, P, The Music Industry: Music in the Cloud (Polity Press, Cambridge and Malden, 2009), p 15; Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 34. 17 Hull, GP, The Recording Industry, op. cit., p 18; Suisman argues that recorded music should not be seen as simultaneous with popular music itself, emphasizing that popular music involves more than recording, Suisman, D, “Sound Recordings and Popular Music Histories: the Remix” (2011) 23 (2) Journal of Popular Music Studies, pp 212–220, p 214. 18 Hull, GP, The Recording Industry, op. cit., p 17, Hull asserts that ‘the recording

industry owes its existence to technology’. 19 Frith, S, Music for Pleasure (Routledge, New York, 1988), pp 14–17; Day, T, A Century of Recorded Music; Listening to Musical History (Yale University Press, New Haven and London, 2002), p 2; radio broadcasting, especially during the 1930s was seen as being partly responsible for the decline in record sales during the era, however, it appears that the radio may now be considered as being complementary to the music industry, Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 53; Peacock, A and Weir, R, The Composer in the Market Place (Faber Music, London, 1975), p 15. 20 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 4; Frith, S, Music for Pleasure, op. cit., pp 21–22; Day, T, A Century of Recorded Music; Listening to Musical History, op. cit., p 3 and pp 19–23. 21 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 8.

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unauthorised copying, calls were eventually made for copyright protection to extend to sound recording.22 Although some theories on popular music may be inclined to consider popular music from a purely technological point of view, Adorno, a notable cultural theorist, draws attention to certain problems that a technological theory of culture can create,23 some of which form part of the central concern of this book.24 Firstly, in celebrating the advancement of technology and the possibilities it generates, little attention may be paid to Adorno’s argument that ‘the basis on which technology acquires power over society is the power of those whose economic hold over society is greatest’.25 This argument suggests that when technological processes are the bedrock for an industry, or in this case culture, the dominant force or the decision maker would inevitably be those with economic resources to exercise these technological means of production.26 Secondly, Adorno argues that the scenario he depicted above results in the standardisation of cultural goods.27 In this regard, he asserts elsewhere that the cultural industry is not concerned with ‘culture that arises spontaneously from the masses themselves’, but that a new quality is ‘tailored for consumption by masses…manufactured more or less according to plan’.28 Therefore, he argues that ‘industry robs the individual of his

22 Hull, GP, The Recording Industry, op. cit., pp 47–49. 23 Adorno, TW and Horkheimer, M, Dialectic of Enlightenment (Verso Edition, Verso,

London and New York, 1979), p 121. 24 The central concern of this book is whether the relationship between record label executives and performing authors in the Nigerian music has any effect on the creative output of the latter, and whether copyright law is responsible for the dynamics in this relationship. 25 Adorno, TW and Horkheimer, M, Dialectic of Enlightenment, op. cit., pp 121–122. 26 In Negus’ view, the fact that such technological developments may have predated the

capitalist ventures that depend on them shows that their dominance was not historically inevitable, Negus, K, Producing Pop: Culture and Conflict in the Popular Music Industry, op. cit., p 21; however, if it is conceded that capitalistic dominance has indeed occurred, this may lend further credence to Cirillo’s argument about the necessity of establishing an “explicit welfare function”, supra, Sect. 5.4.2. 27 Adorno, TW and Horkheimer, M, Dialectic of Enlightenment, op. cit., p 121. 28 Adorno, TW, The Culture Industry; Selected Essays on Mas Culture (Routledge,

London, 1991), p 85.

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function’,29 thereby resulting in the uniformity of cultural products and reduced innovation.30 Some argue that Adorno’s reference to cultural articles produced in an assembly line should not be taken literally.31 However, Adorno’s criticisms of a technological theory of culture are important and noteworthy. This is because when the balance of power tilts in favour of record labels by virtue of technological, financial and administrative supremacy, the investigation of the consequent effects on creative autonomy for performing authors becomes necessary. Frith, also a notable culture-theorist, downplays the common concern among industry critics about the effects of industrial processes on music.32 Some argue that the industrial process alters the product and renders a disservice to both authors and listeners, but Frith challenges this idea. He asserts that twentieth-century popular music is not the end product of the application of the industrial process on some esoteric raw material which eventually alters the nature of the thing. Instead, he views popular music as the result of a process which involves the fusion of capital, technical and musical elements.33 This argument is noteworthy because it still begs the question as to which of these elements exercises the greatest power of persuasion in the creation of popular music. The answer to this question requires empirical investigation and analysis, which this book undertakes in Chapter 4.34

2.3 The Traditional Structure of the Popular Music Industry Interestingly, Frith’s reference to capital, technical and musical elements are a useful cue for discussing the traditional structure and functional roles within the popular music industry. A plausible method of analysing the

29 Adorno, TW and Horkheimer, M, Dialectic of Enlightenment, op. cit., p 124. 30 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 30. 31 Negus, K, and Pickering, M, Creativity, Communication and Cultural Value, op. cit., p 49. 32 Frith, S, Music for Pleasure, op. cit., p 11. 33 Ibid., p 12. 34 Infra, Sect. 4.7.

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structure of the popular music industry is the ‘systems approach’ which involves(1) inputs, (2) some transformation process, (3) outputs (the products which are the results of the transformation process), (4) a feedback process that will influence the selection of inputs into the next round of processing, and (5) an external environment within which the organisation carries out its processes.35

With regard to creativity, an elaboration of the systems approach has been described as the ‘evolving systems approach’The approach is interactive: the creative person works within some historical, societal and institutional framework. The work is always conducted in relation to the work of others. At the same time, the creator works alone, even when intimately bound up with others. This interaction produces varying patterns of conflict, influence and collaboration.36

Despite the importance of the systems approach and its elaborated version, the spatial contexts these methods refer to are wider than the ambit of this book. Additionally, they appear to have sociological and anthropological thrusts that do not offer a suitable approach for the empirical studies conducted in this book, which are geared towards proffering legislative recommendations.37 Instead, Frith’s reference to capital, technical and musical elements,38 inspire the use of a bifurcated analysis of the structure of the popular music industry. This analysis will focus on the creative and executive roles within the music industry which are responsible for popular music as a product.39 It will not include such auxiliary

35 Hull, GP, The Recording Industry, op. cit., p 11. 36 Gruber, HE, “The Evolving Systems Approach to Creative Work” in Wallace, DB

and Gruber, HE (eds) Creative People at Work: Twelve Cognitive Case Studies (Oxford University Press, New York, 1989), p 4. 37 Infra, Sect. 9.3. 38 Frith, S, Music for Pleasure, op. cit., p 12. 39 PricewaterhouseCoopers, “Music Collecting Societies, Evolution or Regulation?

Assessment of Recent Proposals on the Reform and Regulation of Collective Rights Management in the Music Industry” (June 2005) available at http://pwcplus.pwc.de/fil eserver/EmbeddedItem?docId=e5021b4f91a7ed8&componentName=pubDownload_hd& title=PDF:+Verwertungsgesellschaften:+Evolution+oder+Regulierung?+(Music+Collecting+ Societies.pdf), p 7 (accessed 21 February 2013).

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creative roles as cover designs, artwork and styling, but will primarily be centred on authors who double as performers, and record label executives. There appears to be some scholarly consensus on the interorganisational interactions that characterise the music industry, and they are built on the recording, publishing and live performance of music.40 It is of great importance because these three streams are legally recognised rights based on distinct creative activities; ‘a song is written, a record is produced, a live performance is given’.41 Similarly, in the mapping document of the creative industries, which was an initiative of the British Department for Culture, Media and Sports, the core activities of the music industry include these three activities.42 It also includes administration of copyrights,43 and this chapter will briefly elucidate on the role and function of copyright administration organisations. This chapter will also analyse the nature of independent efforts in music production which contrasts with the more sophisticated structure of cooperation in recording companies. 2.3.1

Executive Roles

For the purpose of this book, the use of the term ‘executive roles’ refers to the roles within the music industry that participate in the decision-making processes involved in the selection of performers and songs for the industry’s markets. These roles are traditionally represented by legal entities

40 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 9 and

p 29; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 49; Hull refers to these as the ‘three income streams model’, arguing about its importance in the study of the business of music production. The model is built around the three major ways through which music generates revenue, Hull, GP, The Recording Industry, op. cit., p 20; Williamson, J and Cloonan, M, “Rethinking the Music Industry”, op. cit., p 306 and p 319. 41 Hull, GP, The Recording Industry, op. cit., p 20. 42 Department for Culture, Media and Sport (DCMS), “Creative Industries Mapping

Document” (1998), available at http://webarchive.nationalarchives.gov.uk/201004071 20701/http://www.culture.gov.uk/images/publications/music.pdf (accessed 22 February 2013). 43 Ibid.

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known as recording companies which may vary in size and sophistication, ranging from the local to the multinational.44 Such multinational recording companies operate a complex structure of specialised departments that handle the various aspects of the executive processes necessary for the creation and dissemination of popular music.45 In this regard, it has been argued that the roles of the A&R agents,46 the record label president and the promoter serve as the primary portals for performing authors’ entry into the industry.47 The role of music publishers may also be relevant for discussion here in view of the facts that all authors may not necessarily be performers, and performing authors may have publishing contracts that are treated separately from their recording contracts. It has been noted that in the UK, record label executives generally appear to fit a standard profile of ‘middle-class, white male’, which may have shaped their values and influenced their decision making.48 Thus, their activities may have aesthetic influences on popular music. However, regardless of the executive fiat which such roles may exercise, the ideal primacy of the author in the structure of the industry is still evident from their exclusive authorial rights, which industry executives require authorisation to exploit. The executive roles identified in this section each preside over the exploitation of one or more exclusive authorial right, and the rights they may exploit in the course of their duties are presented below in tabular form (Fig. 2.1). This section will identify these roles and the ways in which they deal with the discovery and production of popular music from the point of authorship, to consumption by its myriads of listeners and devotees.49

44 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., pp 133–135, and p 242; infra, Sect. 2.3.1.2. 45 Hull, GP, The Recording Industry, op. cit., p 137. 46 A&R refers to Artist and Repertoire agents, and their roles will be further elucidated

in Sect. 2.3.1.1 of this book. 47 Hirsch, P, The Structure of the Popular Music Industry (Survey Research Centre, University of Michigan, Ann Arbor, 1970), pp 25–33. 48 Negus, K and Pickering, M, Creativity, Communication and Cultural Value, op. cit., p 54. 49 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 55.

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Executive Roles

Exclusive Authorial Rights Exploited

A&R Agents

Adaptation, Performing rights

Record Label Executives

Adaptation, Reproduction, Communication to the Public

Music Publishers

Communication to the Public

Promoters and Distributors

Distribution

Fig. 2.1 Executive roles and their exercise of authorial rights

2.3.1.1 Artiste and Repertoire (A&R) Agents The role is thought to have originated after the Great Depression, by virtue of individuals who encouraged and developed talented musicians in their neighbourhoods and promoted their music on the radio.50 These individual scouts arguably reshaped the structure of music business, as they often worked multiple roles of A&R agent, producer and label owner.51 While A&R agents may work independently, they often work as executive staff of recording companies. Recording companies, apparently in awareness of the commercial significance of their mass audiences, endeavour to stay abreast with popular taste preferences.52 Thus, it may be understood that a key part of the role of A&R agents is dedicated to ensuring that a company’s musical output remains relevant to popular trends and tastes. Though the scope of responsibilities for A&R agents may vary from one company to another, it essentially involves scouting for new talent, in terms of both songs and performers.53 With regard to A&R agents making decisions about which performers to sign on and which songs they would record, their role has been

50 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 235. 51 Shemel, S and Krasilovsky, MW, This Business of Music (5th ed, Billboard Publications

Inc, New York, 1985), p 47; however these responsibilities are also often undertaken by independent producers, whose role is discussed, infra, Sect. 2.3.3; Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 235. 52 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances (Springer, New York, 2010), p 82; Hull, GP, The Recording Industry, op. cit., p 13. 53 Hull, GP, The Recording Industry, op. cit., p 13; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 55; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 21.

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described as ‘the first strategic checkpoint in the pre-selection process’.54 They also traditionally serve to develop artists and are often involved in record production.55 A&R managers in record companies are often seen as ‘in-house artist managers’ and may be responsible for co-ordinating recording sessions for artists by ‘selecting recording studios, producer, engineer and the material to be recorded, budgeting and supervision of recording costs and co-ordinating the release and promotion of new records’.56 It appears that if in the course of their scouting, A&R agents consistently restrict themselves to already established concepts of talent held dear by recording companies, innovation and novelty could be absent from popular music, and variety in cultural output will be significantly minimised or lost.57 This is a key element of the arguments made in this book that will be developed further in Chapter 4.58 In this regard, it has been argued that with the ‘development of some small independent labels into quasi-majors’, the diversification of roles led to standardised approaches in talent scouting which were less flexible, and resulted in the loss of distinctiveness.59 Motown, Chess and Atlantic have been cited as labels which experienced a decline in the innovativeness of their sound as a result of such structured development.60 The role of A&R agents has led some to refute individual-based notions of authorship in popular music, because it is argued that A&R agents, in the process of selecting and ‘discovering’ new performers and authors, are actually involved in the creative process.61 This argument will be considered further in the data chapter of this book, which explores

54 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 55. 55 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 21. 56 Simpson, S and Stevens, G, Music; The Business and the Law (The Law Book Company Limited, Sydney, 1986) pp 111–112. 57 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 237. 58 Infra, Sect. 4.5.3. 59 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 236. 60 Ibid. 61 Tschmuck, P, Creativity and Innovation in the Music Industry (Springer, The Netherlands, 2006), p 231.

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how recording companies make such decisions, and how their decisions can affect the creative autonomy of performing authors.62 It has been noted that A&R’s search is not merely for new talent, but for artistic talent that has commercial potential.63 Thus, the function of A&R’s arguably revolves around risk; ‘taking and reducing risksknowing when to take and when not to take risks, and knowing how to reduce the risk of making a poor choice’.64 This is because in the process of acquiring new talent and making master recordings, which may be described as the bedrock of the music business, recording companies may engage in a range of gambles. As such, rather than betting on entirely new performing authors and new musical styles, they may consider it safer to purchase master recordings from smaller independent labels which have already been partially marketed and enjoy some level of followership. For the same reasons, A&R’s may also scout for performing authors who have independently established some level of popularity on the internet, as they seek to avoid the risks that may be entailed with signing entirely new talent whose material may not have been recorded yet, and whose styles do not yet have followership.65 Recording companies may also acquire established acts from other recording companies at the expiration of their contract terms. This method of acquiring ‘new’ talent, though apparently less risky, can still turn out costly because in situations where established performing authors subsequently reach their artistic peak, such secondary deals may not eventually prove beneficial for recording companies.66 Be that as it may, it has been argued that companies still acquire such acts, despite the time, costs and effort involved in developing and promoting their music, because conversely, advances negotiated by such acts are not as high.67 Thus, depending on the success of the artist and the terms of the contract, companies are able to recoup their expenditure and make some profit. It is believed that A&R agents have ‘good ears’, because the ability to identify artistic talent has itself been lauded as a talent, and several 62 Infra, Sect. 4.3. 63 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 119. 64 Hull, GP, The Recording Industry, op. cit., p 139. 65 Hull, GP, The Recording Industry, op. cit., p 139. 66 Hull, GP, The Recording Industry, op. cit., p 140. 67 Hull, GP, The Recording Industry, op. cit., p 140.

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A&R agents have developed celebrated reputations in popular culture.68 However, it has been argued that their skill in determining which risks would be eventually more beneficial, is the result of years of paying consistent attention to the popular music scene by studying, regular visits to clubs, listening to demos, and the ability to recognise social trends.69 Thus, A&R agents may seek to maintain a presence on the streets and endeavour to stay well informed, in order to get ahead of their colleagues from other labels in the discovery of new talent. They also receive a lot of unsolicited demo recordings from aspiring performers and authors who desire recording contracts, many of which they do not listen to.70 Despite the scouting activities of A&R agents, many performing authors still struggle to get their attention, and only a fraction of these may be successful; of which even fewer may be selected by label executives.71 When burgeoning performing authors are successful at establishing a contract relationship with a record label or recording company, A&R managers would normally select the songs that they are to record, and such burgeoning acts are often contractually required to comply with the label’s decisions. This practice effectively limits the exercise of creative autonomy for performing authors. However, if performing authors are well-advised, they may negotiate to retain the right to choose the compositions they record, or the right to approve the label’s suggestions in their contracts.72

68 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 231. 69 Hull, GP, The Recording Industry, op. cit., p 142; it has, however, been observed

that with the digitization of music, and the widespread use of online social networks, A&R agents currently do a lot of scouting on websites such as MySpace, Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 166; In 2008, ‘MySpace accounted for 40% of the way new songwriters and other acts were discovered’, Pitt, IL, Economic Analysis of Music Copyright : Income, Media and Performances, op. cit., p 82. 70 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 21. 71 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 55 and p 142,

although Wikstrom later argues that most artists are now able to record at their own costs and send master recordings to A&R agents, this appears not to be the case for many artists. 72 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 9 and p 174; Gani, MW, “Negotiating Like a Diva: Preserving Creative Autonomy in the Music Industry” (2019) 3 Wolverhampton Law Journal, p 41; Infra, Sect. 8.4.3.

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2.3.1.2 Record Label Executives The traditional structure of the recording industry prominently features recording companies, which have been often alternately referred to as ‘record labels’.73 These companies may range from small-scale family businesses to major multinational conglomerates, the largest of which have been popularly referred to as ‘the big four’.74 It may be argued that the size and success of these major labels were initially by virtue of their ownership of some technological patents that served to boost the sales of recorded music. However, a series of mergers and acquisitions have led to the classification of the music industry as oligopolistic.75 The big four companies, Warner Music Group, Universal Music Group, Sony-BMG and EMI Ltd have international presence and exercise considerable market dominance; believed to account for more than half of the music produced and distributed worldwide.76 With respect to the concern to prevent oligopolies, it has been asserted that oligopolies are not necessarily disadvantageous to the economy, and that though the challenge of establishing effective distribution networks may restrict entry, independent labels may successfully produce music using the internet as a tool for distribution.77 Regarding their functional role, record labels are known to be primarily concerned with the acquisition, or creation of master recordings of popular music for the purpose of distributing them in order to make profit.78 Larger labels such as the ‘big four’ typically have complex structures with diverse specialist departments that oversee the various aspects of the music business, such as music publishing, management, A&R management, graphic arts, touring, promotion and distribution.79 73 Hull, GP, The Recording Industry, op. cit., p 121. 74 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., pp 133–135

and p 242. 75 Hull, GP, The Recording Industry, op. cit., p 121 and p 125. 76 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 69; Simpson, S and

Stevens, G, Music; The Business and the Law, op. cit., p 109; Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 135. 77 Hull, GP, The Recording Industry, op. cit., p 122. 78 Ibid., p 139. 79 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 20; Hull, GP, The Recording Industry, op. cit., p 130; Simpson, S and Stevens, G, Music; The Business and the Law, op. cit., p 109.

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However, as has been discussed earlier in this chapter, roles in smaller labels tend to be less compartmentalised and individuals may hold more than one role.80 The individuals at the top of the executive structure for both small and large recording companies, are often referred to as record label executives or as label presidents, and they serve to oversee the functions of their label. Such individuals may have gained experience from other sectors within music business such as A&R, marketing or business and legal affairs, but in their capacity as label presidents, they exercise the executive power in the label’s undertakings.81 This includes the choice of performing authors to engage with and the choice of songs to promote. Within larger labels, while the A&R agent scouts for talent and may be in charge of making arrangements for master recordings,82 it has been asserted that the next step in their business process is to introduce their ‘discoveries’ to the label president who makes the definitive executive decisions.83 Label presidents may then offer recording contracts to performing authors on behalf of their label, some of the features of which will be discussed in this book.84 2.3.1.3 Music Publishing Executives The role and importance of technology in sound recording for popular music has been identified above.85 However, it is important to note that musical compositions to be recorded are typically treated differently from recordings both in law and in business.86 Sound recordings are generally made from literary and musical compositions, and as has been seen in the introductory chapter of this book, there are different copyright provisions for sound recordings and for literary and musical works.87

80 Supra, Sect. 2.3.1; Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 235; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 20. 81 Ibid., p 21; Hull, GP, The Recording Industry, op. cit., p 131. 82 Ibid., p 134. 83 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 20; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 55. 84 Infra, Chapter 8. 85 Supra, Sect. 2.2. 86 Bagehot, R, Music Business Agreements (Waterlow Publishers, London, 1989), p 232. 87 Supra, Sect. 1.8.2.

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Musical works are sometimes referred to as sheet music, because this was the format in which copies were historically sold and distributed. Although the sale of sheet music may have initially been the most popular method of exploiting music copyright, live performances and the sale of discs and digital versions of recordings have further diversified the business of music publishing.88 It is now generally understood that from the different outlets by which music is exploited, music publishing generates performing royalties, synchronisation royalties, and mechanical royalties.89 However, as a result of the growth of cloud computing via websites such as YouTube and MySpace, and later on Spotify, Amazon and Apple music, further developments in the business models used by publishers may have become necessary.90 In general terms, it may be understood that music publishing involves the issuing of licences for exploitation of compositions, the active search for outlets through which to exploit the musical works, and the collection of payments or royalties for exploitation.91 In the course of issuing exploitation licences and collecting payments for their use, music publishers may often work in conjunction with collecting societies by registering their songs with them.92 Music publishing executives are also involved in searching for talent, and it has been noted that they ‘employ scouts and A&R people in the 88 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., pp 172–173. 89 They have been explained thus-

Performance royalties are paid when a song is performed by an orchestra or singer, played by a radio station, used as a mobile phone ringtone, played in a shopping mall. Synchronization royalties are paid when a song is used together with moving images, for instance a movie or videogame. Mechanical royalties are paid based on actual sales of sheet music and audio recordings. Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 57; Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 174; Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 87. 90 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., pp 6–8. 91 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 86;

Harrison, A, Music the Business: The Essential Guide to the Law and the Deals (4th ed, Virgin Books, London, 2008), p 83. 92 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 66; Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op. cit., p 83; the role of collecting societies shall be discussed, infra, Sect. 2.3.4.

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same way as record companies do’.93 In this way, the role of the A&R agent as a gateway into the industry is again emphasised.94 Although music authors may be anxious to find publishers that are keen and capable of maximally exploiting their compositions, music publishers like record labels, engage in a process of filtering through proposals in deciding which works to publish.95 It may happen that a performer seeking a record deal is also a music author. In such cases, it may be that the performing author has a publishing contract and a recording contract with two separate firms. Whereas, with larger recording companies that serve as umbrellas for record labels as well as music publishing firms, performing authors may have a single contract with the company which will include detailed clauses for the different rights involved in the contract, and royalty sharing formulas.96 Be that as it may, it has been observed that music authors often decide to self-publish or to publish in partnership with publishing companies that are separate from record labels, possibly due to dislike of proposed royalty sharing formulas, or because of a reluctance to assign all their publishing rights to a recording company with such vast reach.97 Independent publishing may appear more favourable to music authors because of its perceived relative ease,98 while being reliant on collecting societies for the administration of their royalties.

93 Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op. cit., p 82. 94 Supra, Sect. 2.3.1.1; Hirsch, P, The Structure of the Popular Music Industry, op. cit., p 25. 95 Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op. cit., p 82. 96 Ibid., pp 91–95; Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 87, Warner/Chappell Music, one of the largest music publishing companies in the world, is a subsidiary of the Warner Music Group and EMI Music is owned by EMI Ltd. 97 Publishing contracts usually feature the assignment of the author’s right to the company, and companies traditionally share royalties with authors in the ratio 50:50, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 174; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., pp 70–71. 98 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 87.

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2.3.1.4 Promoters and Distributors It has been argued that in the cycle of music production, ‘decision makers work from a product image geared more towards satisfying decision makers at the next stage of production than satisfying the final consuming audience’.99 With regard to the traditional distribution of physical copies of music, the big four recording companies that function as conglomerates, operate a diversified system of production and have their own internal distribution firms which may have the benefit of an established presence in international markets.100 Moreover, it has been asserted that a large number of independent producers and smaller record labels depend on the distribution systems owned and operated by the major labels.101 In terms of the traditional models of distributing records, it may therefore be argued that these major distribution firms exercise an executive fiat in the production of popular music as they select which projects to distribute.102 In this digital age, the distribution of digital music across internet-based platforms like Spotify, Tidal and Apple music may feature fewer barriers to entry for performing authors. However, they may have lopsided royalty sharing formulae with which performing authors may have varying levels of negotiating success.103 It has been observed that in current times, artists generally consider live music as a more important revenue source than record sales.104 While live music may have historically been lucrative for artists, the current emphasis is perhaps due to the decline in record sales and the move to digital music. With the growing vibrancy of live performances and music tours, promoters also appear to exercise considerable authority in the music business. Promoters organise tours, book artists and venues, and promote ticket sales for such events, for the payment of a negotiated percentage 99 Ibid., p 74. 100 Supra, Sect. 2.3.1.2. 101 Independent efforts in the production of popular music will be discussed in Sect. 3.4

of this book. 102 Hirsch, P, The Structure of the Popular Music Industry, op. cit., p 33; Wikstrom, P,

The Music Industry: Music in the Cloud, op. cit., p 56; Burnett, R, The Global Jukebox; The International Music Industry, op. cit., pp 74–75. 103 Gani, MW, “Negotiating Like a Diva: Preserving Creative Autonomy in the Music Industry”, op. cit., p 40. 104 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 72; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 58.

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of ticket sales.105 It has been observed that performers of popular music, who are often referred to as recording artists, ‘create the vast majority of the income generated in the live-performance stream’.106 An indicator of the current economic importance of live music is the emergence of Live Nation Entertainment, a multinational events promotion conglomerate.107 It is built on the operations of four market leaders; Live Nation Concerts, Ticketmaster.com, Front Line Management Group, and Live Nation Network.108 Moreover, by virtue of its operations, it is the largest concert promotion company in the world, and it is more than twice the size of its largest competitor, AEG Live.109 From the foregoing, due to the growing importance of live music, it is possible that certain traditional roles within the industry may become blurred; promoters may engage in businesses that are traditionally viewed as belonging to record labels, and record labels may require from artists a share in the proceeds from live music. Accordingly, the executive role of promoters as decision makers within the popular music industry is currently being emphasised by their involvement in signing on artists.110 This has resulted in what is commonly referred to as the ‘360 deal’ or the ‘360 model deal’,111 and it shall be assessed further in Chapter 7 of this book.112

105 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 72. 106 Hull, GP, The Recording Industry, op. cit., p 97. 107 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 83; http://www.

livenation.co.uk/about (accessed 27 February 2020). 108 http://www.livenationentertainment.com/about_us/ (accessed 27 February 2020). 109 Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op.

cit., p 212; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 60 and p 83. 110 Madonna, Nickelback, Shakira and Jay-Z are some performers who have signed famous deals with Live Nation, Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 72. 111 Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op. cit., p 212. 112 Infra, Sect. 7.4.

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2.3.2

Creative Roles

It has been narrated that after the nineteenth-century inventions of the phonograph and the gramophone, singers began to develop interests in recording music; in the early 1900s, popular songs like national anthems, waltzes and polkas were recorded and played back on cylinders and discs that were mostly operated by coin-in-the-slot machines.113 Prior to this time, studies of the Renaissance in Italy show that singers mostly performed in churches or for patrons.114 Also, the distinct person of the music author had already become an established role, identifiable by their distinct compositions.115 In viewing the music industry as comprising of three streams, reference has been made to recording artists, songwriters (authors) and performing musicians as the creative roles within the industry.116 However, ‘performing musicians’, a term which may include vocalists and instrumentalists, may also engage in studio recording and may thus be referred to as ‘recording artists’.117 This subsection will briefly identify and discuss these creative roles in the production of popular music, under the titular descriptions of composers and lyricists on the one hand, and music performers on the other hand. It will then briefly refer to the role of the performing author which was introduced in chapter one of this book.118 2.3.2.1 Authors: Composers and Lyricists The term composers may generally be used to refer to music authors, while the term lyricists may be used in reference to authors who write the lyrics or literary aspect of songs. This distinction may be important for works of joint authorship where two different people write the lyrics and

113 Day, T, A Century of Recorded Music; Listening to Musical History, op. cit., pp 1–3. 114 Towse, R, Singers in the Market Place; The Economics of the Singing Profession

(Clarendon Press, Oxford, 1993), p 1. 115 Scherer, FM, Quarter Notes and Bank Notes (Princeton University Press, Princeton and Oxford, 2004), pp 53–54; the Renaissance also saw the birth of the instrumentalist as a distinct role within music performance, Lowinsky, EE, “Music in the Culture of the Renaissance” (1954) 15 (4) Journal of the History of Ideas, pp 509–553, p 515 and p 552. 116 Hull, GP, The Recording Industry, op. cit., p 20. 117 Ibid., p 21. 118 Supra, Sect. 1.2.2.

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music for a song.119 In regular colloquial parlance, composers and lyricists are often referred to as songwriters.120 They may make agreements with publishing companies that administer the exploitation of their works, and it has been observed that though each contract may differ, they typically share the accruing royalties with the publishing company in the ratio 50:50, or 70:30.121 Although they may not be involved in the performance and recording of their songs for various reasons,122 it has been observed that songwriters may benefit from future earnings and royalties from their songs beyond the lifetime of its record sales.123 Such earnings may be made through means that include radio play, performances of the song by multiple performers, and adaptations. 2.3.2.2 Performers Performers may perform for live audiences, on recordings or both, and each method or outlet may attract a distinct type of income. The position of international treaties on the entitlement of performers to remuneration for their work has been depicted earlier in this book.124 That notwithstanding, it has been asserted that for live performances, promoters often pay performers a percentage of ticket sales and occasionally an additional guaranteed sum, which may differ based on performers and events.125 In the case of recorded performances, recording contracts would normally stipulate a royalty sharing formula on which basis the performer is remunerated, and such performers may be referred to as a recording

119 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 86. 120 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 280; Hull, GP, The Recording Industry, op. cit., p 22. 121 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 57; Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates” (1999) 17 (2) Prometheus, pp 163–186, p 163. 122 Some songwriters experience stage fright, or may not enjoy performing publicly, Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 84. 123 Peacock, A and Weir, R, The Composer in the Market Place, op. cit., p 153; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 87. 124 Supra, Sect. 1.8.4. 125 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 59.

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artist or a royalty artist.126 However, it appears that the relationship between live performances and recorded music is so interwoven that one is often thought to be responsible for the success of the other.127 In the twentieth century, the success of live performances was relied on as an index to predict success in record sales.128 Be that as it may, it appears that the reverse is currently the case, and this may be due to the decline in record sales since the advent of the internet and digital music.129 The foray of companies like Live Nation and AEG Live into businesses traditionally belonging to the records business further shows how thin the dividing line is.130 It is important to note that music performers are not necessarily only vocalists; instrumentalists perform independently or together with vocalists, and may also have contractual arrangements with record labels and promoters for their remuneration. 2.3.2.3 The Performing Author The introductory chapter of this book described the ‘performing author’ on the basis of the exclusive authorial rights vested by copyright law,131 but this subsection will briefly highlight the role from the perspective of their creative contribution to the popular music industry. It has been noted that as far back as the Renaissance, music composers often participated in the performance of their works, and this served as another means of revenue for them.132 However, in the popular music industry, songwriters were traditionally hired to write songs for recording artists, and in many cases, A&R agents were also responsible for finding suitable songs for artists to record.133 Although some artists may have written some of their songs, it has been asserted that it was the Beatles that were responsible for making 126 Hull, GP, The Recording Industry, op. cit., pp 21–22. 127 Ibid., p 97. 128 In some instances, live performances and tours were relied on as venues where records could be sold, as well as branded merchandise, ibid., p 116. 129 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 178. 130 Supra, Sect. 2.3.1.4. 131 Supra, Sect. 1.2.2. 132 Scherer, FM, Quarter Notes and Bank Note, op. cit., p 57. 133 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 274.

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this practice common, thus introducing the trend for certain issues relating to song-writing and music publishing to be included in recording contracts.134 In music industry parlance, people who serve this dual role and its associated cultural value are referred to as singer-songwriters.135 However, for the purpose of this book and copyright jargon, the term ‘performing authors’ shall be adopted. It has been asserted that many of the best-known and lucrative artists are ‘singer-songwriters’; that is, they hold rights covering both the music and the performance (eg the Beatles, David Bowie, Janet Jackson, Michael Jackson, Madonna, George Michael, Prince).136

2.3.3

Independent Music and Producers

Despite the view that the operations of the major recording companies result in an oligopoly in the music industry,137 it is also true that many aspects of music business are borne by individuals and independent companies.138 With reference to publishing, it has been asserted that songwriters often publish their works themselves and may set up independent publishing companies which are owned and run by groups of songwriters, without recourse to the larger publishing companies.139 The business of music publishing may not necessarily require an elaborate distribution network, and as such, independent publishers may simply choose to adhere to the requirements of their chosen collecting society (which may include incorporation), and avoid splitting their royalties with external publishing companies. Moreover, it has been noted that it is not unusual for independent publishers to make agreements with large publishing companies for the administration of their catalogues as such

134 Ibid., p 274. 135 Negus, K, “Authorship and the Popular Song”, op. cit., p 610. 136 Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in

Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., p 173. 137 Supra, Sect. 2.3.1.2. 138 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 234. 139 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 87.

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negotiations are still preferable for them in comparison to the assignment of their publishing rights and halving their royalties.140 As regards the business of recorded music, the major role on which a lot of focus has been made is the independent producer. ‘Some commentators have argued that in making records of pop music the producer is the primary creator, that his role is similar to that of a film director’.141 However, the history of recorded music shows that at best, producing recorded music is a co-operative endeavour that involves the performer, and possibly the song writer.142 The producer has been described as the person responsible for ‘getting the dynamics and emotion of the music on tape’.143 As such, the producer may be expected to have the musical and technical skills needed to be detached enough from the song in order to constructively criticise it while interpreting it. Depending on contractual terms and the level of producers’ involvement with a recording project, they may be paid fixed fees per track, or royalties from the proceeds of record sales.144 Independent producers often worked as songwriters, A&R scouts, studio producers and sometimes publishers, independently piecing together the technical, musical and financial aspects necessary for their recordings from scratch.145 In many instances, they would brand their activities and operate as independent record labels. The producer’s role thus appears to exert considerable authority in the decision-making processes that result in popular music, and it has been narrated that as early as the 1950s, many small independent record labels had been born and were operating through local distribution networks, or subscription

140 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., pp 259–260. 141 Day, T, A Century of Recorded Music; Listening to Musical History, op. cit., p 37. 142 Ibid., p 35. 143 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 240; Harrison, A, Music the Business: The Essential Guide to the Law and the Deals, op. cit., p 118. 144 Ibid., p 118. 145 Thus the view is held that they form an integral part of the creation of popular

music, Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 234 and p 240; many performers have also been known to produce for themselves and for other artists, and sometimes become reputable in both professions, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 47.

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mail order services.146 Their businesses were reportedly facilitated by the relative ease of acquiring microphones and tape recorders, and the fact that there were many aspiring amateur musicians who were ‘eager to increase their audiences and further their reputations by recording’.147 These trends, in addition to producers’ multiple roles, may have increased the notoriety and importance of the role of the independent producer. It has been noted that many independent labels became hugely successful in producing diverse styles which had been ignored by larger labels and were thus responsible for the birth of Bebop and the breakthrough of Rock ‘n’ Roll, Rap and New Age genres.148 However, although they successfully influenced popular music, it has been argued that many of them were not economically strong enough to sustain themselves in the market, possibly owing to their highly centralised operational structures.149 Accordingly, many of the larger music corporations, in their quest for market dominance, have acquired smaller successful labels or made deals with them, that typically maintain the role of the independent producer as a source for the supply of new music.150 It is important to note that the level of independence the producer can exercise will depend on the provisions of their contract with the majors, and the extent to which they are dependent on them for distribution.151 The size and functions of independent labels currently may range from labels with large operations that are not part of the big four, to the small-scale operations of independent producers who have distribution arrangements with digital platforms, telecommunication companies or one of the major labels.152 The growth of internet usage and digital music

146 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 235. 147 Day, T, A Century of Recorded Music; Listening to Musical History, op. cit., pp

94–95. 148 Hull, GP, The Recording Industry, op. cit., p 13 and p 136; Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., pp 233–234, while the smaller labels were responsible for the birth of these styles of popular music, Hull and Tschmuck show that major labels bought into the growing trends, thus serving to increase the popularity of new trends in music. 149 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 236. 150 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 47. 151 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 133 and p 242. 152 Hull, GP, The Recording Industry, op. cit., p 136.

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have facilitated distribution for independent music efforts, via websites like Spotify, Amazon, Apple Music, Tidal, Google Play, Facebook and YouTube, on which aspiring artists are able to build followers by tracking the number of streams, downloads and views of their material.153 It is also possible to independently coordinate and direct the release and distribution of records using these web-based streaming platforms as well as personal websites.154 From the foregoing, it may be assumed that the music industry has become a level playing field for creative people, in which they are able to establish financially viable careers without recourse to the distribution networks and corporate structures that the major labels represent. However, the availability of financial and technological means to promote independent careers may vary among creative people, and this assumption may be inapplicable across the board. Furthermore, even though it has been asserted that the interactions between independent producers and major labels historically served to promote the popularity of newer genres,155 the existence of creative autonomy, especially for performing authors in the context of such interactions may require empirical evidence. This is more so because major recording companies have typically acquired the operations of successful independent labels. A notable opinion goes thusThe trivial answer is that independents who tried to venture beyond their core territory have been bought… as in a landmark deal of 1992 under which EM1 bought Virgin Records for close to $US 1 bn, at the time termed ‘the end of the independents as a force in the music business’….From this perspective, the dominance of the multinationals will continue as long as they retain the financial clout to take over mediumsized independents, and remain the sole provider of risk finance to the music business.156

153 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performance, op. cit., p 82. 154 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 1. 155 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., pp 233–234. 156 Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in

Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., pp 167–168.

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Collective Administration

As has been noted above, compositions are the raw material from which recorded music is made,157 and the law requires that people seeking to utilise and exploit compositions must obtain the permission of their authors.158 On account of the various ways in which music compositions may be exploited, and the possibility of numerous users because it falls in the class of ‘public goods’,159 administrative systems for licensing the use of works and the collection and distribution of royalties have been developed.160 In this regard, it has been asserted that ‘by providing centralized administration of copyrights, copyright collectives lower collection costs and permit more transactions to occur’.161 The earliest known collective administration body in the world was established in France in 1851 and is known as SACEM (Société des Auteurs, Compositeurs et Editors de Musique).162 It has been asserted that the economic necessity for collecting societies is predicated on the transaction costs associated with individual administration of copyright licences, which would be enormously high for right holders as well as users of copyright works.163 Accordingly, the role of collecting societies in the music industry has been the collection of licence fees on their members’ behalf, from the various avenues where their members’ works

157 Supra, Sect. 2.3.2.1. 158 Section 5 (1) (a) Copyright Act C28, LFN 2004 (Nigeria); Supra, Sect. 1.8.2; as

will be discussed further in this book, the requirement of authorization for the use of compositions may be exercised alongside a requirement for financial remuneration, infra, Sect. 8.4.1; Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., p 163. 159 Infra, Sect. 5.3.3. 160 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 407. 161 Besen, SM, et al., “An Economic Analysis of Copyright Collectives” (1992) 78 (1)

Virginia Law Review, pp 383–411, p 383. 162 Ibid., p 385; https://www.sacem.fr/en (accessed 15 February 2013). 163 Towse, R, “Regulating Copyright Collecting Societies” (3 December, 2007) Keynote

Talk CIPPM Symposium, available at http://www.cippm.org.uk/symposia/Bournemouth% 20Keynote%20talk%203%20December.pdf, pp 1–8, p 2 (accessed 12 February 2013).

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are presented and performed, such as cable networks, television and radio stations, restaurants, clubs and bars.164 The fulfilment of their obligation to their members also may entail entering into ‘reciprocal relationships with foreign societies that allow them to license each other’s repertoires’.165 Some have argued that collecting societies inherently give rise to natural monopolies.166 However, it has been observed that the regulations governing the operations of collecting societies are typically regulated at state level by national governments.167 Furthermore, with regard to governmental regulation of collecting societies, different countries operate different policy frameworks for collective administration. Whereas some countries have multiple collecting societies, some others operate a system where there is only one legitimate collecting society per class of right.168 Thus, it has been argued that while some countries practice legal (de jure) monopolies, in other countries a collecting society monopoly may naturally (de facto) occur.169 For instance, within the European Community, Austria practices a legal monopoly for collecting societies, while in Germany, a monopoly naturally occurred.170 It is arguably more beneficial for multiple collecting societies to coexist in a country. With regard to music copyright, the USA does not operate a 164 Besen, SM, et al., “An Economic Analysis of Copyright Collectives”, op. cit., p 385; PricewaterhouseCoopers, “Music Collecting Societies, Evolution or Regulation? Assessment of Recent Proposals on the Reform and Regulation of Collective Rights Management in the Music Industry”, op. cit., p 15. 165 Ibid., p 385. 166 Towse describes natural monopolies as a situation where the increase in output

corresponds with a decrease in unit costs. This is described as “ever increasing returns to scale”, and the high costs of fixed capital expenditure necessary to launch such ventures may result in natural monopolies, Towse, R, “Regulating Copyright Collecting Societies”, op. cit., pp 4–5; however, Drexl appears to argue that the monopoly of collecting societies may not be an inherent necessity, as he asserts that ‘keeping administrative costs low and the quality of the services high are objectives that can be better guaranteed by competition among several collecting societies for right-holders than by a monopoly’, Drexl, J, “Collecting Societies and Competition Law” (2007) available at http://193.174.132.100/sha red/data/pdf/drexl_-_crmos_and_competition.pdf, p 5 (accessed 12 February 2013). 167 Besen, SM, et al., “An Economic Analysis of Copyright Collectives”, op. cit., p 395; Towse, R, “Regulating Copyright Collecting Societies”, op. cit., p 4. 168 Drexl, J, “Collecting Societies and Competition Law”, op. cit., p 6. 169 Ibid., p 7. 170 Ibid., p 7; section 3 (2) Federal Act on Collecting Societies, 2005 (Austria).

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monopolistic regime for collecting societies, and the competition between ASCAP and BMI in the 1930 s appears to have served to regulate the cost of licence fees.171 This is because, when ASCAP sought to increase licence fees in 1939, the clamour of some licensees against the increase resulted in the establishment of BMI in 1939.172 This history thus suggests that collecting societies function more efficiently in competitive markets.

2.4

Conclusion

From the foregoing, there is a clear symbiotic relationship between the creative and executive roles within what may be termed as the traditional structure of the popular music industry, and the symbiosis is administratively facilitated by the collective administration of rights and royalties. However, this symbiosis also reflects tensions between creative autonomy and commerce.173 This book will identify the extent to which the relationship between executive and creative roles affects the creative autonomy of performing authors, specifically in the context of the Nigerian popular music industry.174 Therefore, the next chapter will discuss the Nigerian popular music industry, and will identify some distinct peculiarities in its structure that will contribute to an understanding of the interactions between executive and creative roles in the industry.

171 ASCAP is the “American Society of Composers, Authors, and Publishers”, founded in 1914, http://www.ascap.com/about/ (accessed 20 January 2014); BMI is “Broadcast Music Inc”, established in 1939, http://www.bmi.com/about (accessed 20 January 2014); SESAC (previously known as the “Society of European Stage Authors and Composers”) is the third collecting society that operates in the US, and it was established in 1930, however, it has been argued that it is ‘“highly selective” in its representation of both American and European works’, Besen, SM, et al., “An Economic Analysis of Copyright Collectives”, op. cit., p 385 and p 402; http://www.sesac.com/EDU/FAQs. aspx (accessed 20 January 2014). 172 Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., p 170. 173 Negus, K and Pickering, M, Creativity, Communication and Cultural Value, op. cit., p 59. 174 Infra, Chapter 4.

CHAPTER 3

The Unique Structure of the Nigerian Popular Music Industry

3.1

Introduction

The previous chapter discussed the traditional structure of the popular music industry, specifically identifying the creative, executive and administrative roles that function in symbiotic ways in order to generate or facilitate popular music.1 While these roles also exist in the Nigerian popular music industry, there are nuances in the Nigerian structure that exist as a result of the industry’s peculiar history and development. This chapter narrates the structural development of the Nigerian music industry, its formidable and innovative distribution systems, and the copyright regulatory landscape. The chapter also discusses the broad genre of Afro-Pop, which is also known as Afrobeats, and the developments in the genre between the mid-1990s and present times.2

1 Supra, Sect. 2.3. 2 The reason for this demarcation is historical, in the sense that the genre began a

popular boom in the mid-1990s when it began to feature lyrics in Nigerian Pidgin, the Country’s colloquial language. Even though international recognition began earlier, it can be argued that from 2015 onwards, the genre’s foray into international markets was established.

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3.2 The Structure and Development of the Nigerian Popular Music Industry Some have argued that the Nigerian popular music industry does not have a defined structure,3 and that though ‘there are stars here and there, …the typical picture is that of an industry mired in the outlook of small-scale producers… struggling against severe odds’.4 Additionally, insiders assert that there is no method to track record sales or to earn mechanical royalties, and that the prevalent business practice is based on live performances and a dependence on corporate organisations for endorsements.5 As such, it has been argued that although the industry is currently developing, record keeping practices are not commonly adhered to, nor disclosed.6 These factors seem to suggest that methodical analysis of the industry may be fraught with challenges. However, in the course of fieldwork carried out for this book which is reported in Chapter 4,7 certain distinct roles and trends were identified, around which the Nigerian popular music industry has been built.8 Also, the fieldwork observed the existence of performing authors interacting with record labels, and having the technical support of other professionals in the production and distribution of

3 Supra, Sect. 1.1; Forchu, II, “Nigerian Popular Music: Its Problems and Prospects in Development” (2011) 10 (2) Unizik Journal of Arts and Humanities, pp 103–114, p 108; Agunanna, C, “There’s Nothing Like a Nigerian Music Industry!- Clarence Peters”, op. cit. 4 Olokuton, A, “The State and Prospects for the Music Industry in Africa”, in UNCTAD, Proceedings of the Youth Forum Music Industry Workshop (Third United Nations Conference on the Least Developed Countries, United Nations, New York and Geneva, 2003, available at http://unctad.org/en/Docs/ldcmisc82_en.pdf), p 51 (accessed 25 February 2013). 5 Agunanna, C, “There’s Nothing Like a Nigerian Music Industry!- Clarence Peters”, op. cit.; Abiola, A, “The Power and Glory of Naija Music” (2010) available at http://adetokunboabiola.blogspot.co.uk/2010/12/power-and-glory-of-naija-music-by. html (accessed 25 February 2013); Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World” (2011) available at http://www.nigeriavillagesquare.com/guest-articles/nig eria-music-conquers-africa-eyes-the-world.html (accessed 25 February 2013). 6 Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p

49. 7 Infra, Chapter 4. 8 The views of performing authors and record label executives will be analysed, while

other professionals interviewed in the exercise were broadly categorized as stakeholders; infra, Sect. 4.1.

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recorded music.9 Furthermore, it has been argued that despite the structural problems of the distribution system in the industry, an identifiable method for performing authors to earn proceeds from the distribution and sale of records indeed exists.10 With regard to the development of the Nigerian popular music industry, it has been noted that ‘most of the features that characterise popular music worldwide…were established in Lagosian music culture well before the advent of Western recorded technology and mass reproduction’.11 However, two defining moments in Nigerian recorded music history have been identified. They were the introduction of the Yoruba commercial gramophone recordings made in England under the Zonophone Label in the mid-1920s, and the recordings made in Lagos under the auspices of the German Odeon Company between 1929 and 1930.12 During this period, though French and British companies were involved in distributing Nigerian popular music,13 it was observed that these recordings were only popular among the elite who could afford to purchase gramophones.14 Performing authors who gained popularity among society’s elite through the means of their records are also said to have profited from live performances at parties and events, but it appears that only a few had this kind of access to recording facilities and the accompanying career possibilities.15 With the limited saturation of gramophones in the market, foreign record companies operating in Nigeria thus experienced problems with the sale of recordings as they were unable to extend their reach to the grassroots, and they subsequently folded up operations or were indigenised.16 9 Infra, Sect. 4.1. 10 Abiola, A, “The Power and Glory of Naija Music”, op. cit. 11 Waterman, CA, Jùjú: A Social History and Ethnography of an African Popular Music

(The University of Chicago Press, Chicago and London, 1990), p 27. 12 Ibid., p 27. 13 Compagnie Francaise d’Afrique Occidental and British United Africa Company. 14 Waterman, CA, Jùjú: A Social History and Ethnography of an African Popular Music,

op. cit., p 77. 15 Ibid., p 77. 16 Shepherd, J (ed), Continuum Encyclopaedia of Popular Music of the World

(Continuum, London, 2003), p 719; Abiola, A, “The Power and Glory of Naija Music”, op. cit.; Polygram became Premier, EMI became Ivory, and Decca became Afrodisia, Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p 50.

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As the availability of music playback technology increased, particularly with cassette players, this period saw an increased wave of piracy of foreign music, which at the time, was more popular than Nigerian music among the urban population between the 1970s and 1990s.17 Music from the USA was particularly popular in Nigerian urban areas,18 and piracy was not the only reason for this, as there were also some licenced distributors and radio stations that played predominantly foreign popular music. According to Peterson and Berger’s argument on the use of inspirational strategy in organisations facing turbulent conditions, the scenario in the Nigerian music industry following the collapse of the operations of foreign recording companies in Nigeria may have provided the framework for the development of entrepreneurship.19 At this point in the history, the earlier departure of foreign labels and the increased access to recording equipment, appear to have inspired local endeavour among performing authors and businessmen.20 Additionally, the cultural norms and structures relating to music, which predated the activities of foreign labels,21 also contributed to the development of what is now referred to as the Nigerian music industry. Consequently, the industry is said to have experienced a rebirth in the late 1990s and in the early part of the twenty-first century.22 The highlights of the renaissance have been linked to the antecedents of pop duo Junior and Pretty who employed Nigerian Pidgin, the local vernacular, in their rap.23 Their use of a local record label and local marketers was 17 Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p

50. 18 Abiola, A, “The Power and Glory of Naija Music”, op. cit. 19 Peterson, RA and Berger, DG, “Entrepreneurship in Organizations: Evidence from

the Popular Music Industry”, op. cit., p 97; This argument may also be instructive for development analysis in other Nigerian industries. 20 Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p

50. 21 Waterman, CA, Jùjú: A Social History and Ethnography of an African Popular Music, op. cit., p 27. 22 The efforts of Kenny Ogungbe and Dayo Adeneye and their record label, Kennis Music have been popularly lauded for launching a new wave, Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World”, op. cit.; Abiola, A, “The Power and Glory of Naija Music”, op. cit.; Novia, C, Nollywood Till November: Memoirs of a Nollywood Insider (AuthorHouse, Bloomington, 2012), p 90. 23 Abiola, A, “The Power and Glory of Naija Music”, op. cit.

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also ground breaking for their time.24 This renaissance started to become globally evident in the rise of numerous local record labels, and in the performing authors whose careers were launched and who gained notoriety, winning awards in Nigeria, various African countries and in the African diaspora.25 The renaissance and its global boom will be further discussed in this chapter.26 Despite the existence of umbrella organisations like Performing Musicians Employers’ Association of Nigeria (PMAN)27 and Federation of Intellectual Property Owners (FIPO)28 it has been argued that the industry, for the most part, reflects the individual efforts of its numerous

24 Ibid. 25 Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World”, op. cit.; Nwachukwu, C, “Nigerian Music Nigeria—A New Dawn for Nigerian Music Industry”, op. cit.; “Hurray for Nigeria! 2Face & D’banj Win the Best International Act (Africa) Award at the 2011 BET Awards” (2011) available at http://www.bellanaija.com/ 2011/06/27/hurray-for-nigeria-2face-dbanj-win-the-best-international-act-africa-awardat-the-2011-bet-awards-photos/ (accessed 25 February 2013); “BET Awards 2012: Best International Act” (2012) available at http://www.bet.com/shows/bet-awards/ 2012/nominees/best-international-act-africa.html (accessed 25 February 2013); Onos, O, “‘VIP’ Rapper Ice Prince Zamani Bags the 2013 BET Award for Best International Act (Africa)” (1 July 2013) Bella Naija, available at http://www.bellanaija.com/2013/ 07/01/vip-rapper-ice-prince-zamani-bags-the-2013-bet-award-for-best-international-actafrica-photos-from-his-bet-awards-experience/ (accessed 20 January 2014); Rolfe, P, “Davido and Tiwa Savage Top Winners at MTV Africa Music Awards” (8 June 2014) The Hollywood Reporter, available at http://www.billboard.com/articles/news/6113980/ davido-and-tiwa-savage-top-winners-at-mtv-africa-music-awards-marlon-wayans (accessed 15 August 2014). 26 Infra, Sect. 3.5. 27 “Performing Musicians Employers’ Association of Nigeria”, information available at

http://www.pmanonline.net/about.html (accessed 28 February 2013); the Association’s objective, among others, is ‘to organize an Association of musicians who are engaged in the employment of the services of musical instrumentalists, producers, entertainment managers, arrangers etc in the performance of their duties, under a virile, strong and united body for their mutual benefits and welfare’; PMAN has, however, been criticized in the media for having a lukewarm approach to its objectives, Nwachukwu, C, “Nigerian Music Nigeria—A New Dawn for Nigerian Music Industry” (2010) available at http://www.nigeriamusicmovement.com/nigerian-music-nigeria-a-new-dawn-fornigerian-music-industry/ (accessed 28 February 2013). 28 Nwokocha, U, “Nigeria: Sub-Sahara Africa: Intellectual Property Rights Development” (2009) available at http://www.mondaq.com/x/70872/Trademark/SubSahara+ Africa+Intellectual+Property+Rights+Development (accessed 3 May 2013).

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professionals.29 The system of hierarchical relationships between independent record labels and larger recording companies that has been observed in the traditional setups of the global popular music industry does not appear to be typically operational in the Nigerian music industry.30 Rather, there are numerous independent record labels in the country with many more springing up,31 thus making the conversational distinction between recording companies and record labels in Nigeria moot. Accordingly, while it may be argued that the individualistic nature of the development of the Nigerian popular music industry may contribute to its structural challenges, a counter-argument can be made on the basis that such individualistic development is the hallmark of free market capitalism, and a driver of development.

3.3

Undocumented, yet Formidable Distribution Networks---Alaba International Market

Although distribution and the related problem of piracy do not form part of the core concerns of this book, a discussion of the distribution network for popular music in Nigeria is pertinent here, primarily due to its translated effect on the business decisions made by record label executives. Its relevance is also connected to the argument that collective administration of performing authors’ rights can only function efficiently with transparent disclosure of sales data. Alaba International Market, situated in Lagos, Nigeria is the largest electronics market in Nigeria and is thought to be the largest in Africa.32 It is said to have begun operating in the early 1970s selling electronic

29 Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World”, op. cit.; Nwokocha, U and Aluko, S, “Nigeria: A Case for Multiple Collecting Societies for the Nigerian Entertainment Industry”, op. cit. 30 Supra, Sect. 2.3.1.2; Burnett, R, The Global Jukebox; The International Music Industry, op. cit., pp 74–76. 31 Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World”, op. cit. 32 https://www.1market.ng/market?pg=4&Alaba%20International%20Market.html

(accessed 16 March 2013); “National Security Threats: Alaba International Market Calls Electrical Dealers to Be Vigilant” (2012) available at http://saharareporters.com/newspage/national-security-threats-alaba-international-market-calls-electrical-dealers-be-vigilant (accessed 16 March 2013).

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products and other similar goods,33 and is believed to account for ‘80 per cent of [the] pirated international music CDs’ in Nigeria.34 In recent times, it has also served as the source of a major distribution network for hard copies of popular music recordings in Nigeria and in parts of West Africa.35 Although established performing authors decry the operational methods employed by Alaba marketers because of its reputation for piracy,36 it has been argued that burgeoning performing authors eager to promote their music are keen to collaborate with them.37 The Nigerian music industry, in responding to the alarming levels of the activities in Alaba market, is said to have organised rallies and hunger strikes, and called for a ban on the importation of blank music CDs.38 However, marketers and distributors in Alaba market maintain their assertion that performing authors are complicit in the activities of the market. They argue that both burgeoning and established performing authors approach them to broker distribution contracts, and emphasise that burgeoning performing authors request for their songs to be included in CDs featuring the works of established performing authors

33 “Pirated Movies and Music from Alaba Market Used to Be Found Across the Whole of Nigeria” (2012) available at http://www.colorsmagazine.com/stories/magazine/85/ story/alaba-piracy-industry (accessed 16 March 2013). 34 Waziri, KM, “Intellectual Property Piracy and Counterfeiting in Nigeria: The Impending Economic and Social Conundrum” (2011) 4 (2) Journal of Politics and Law, pp 196–202, p 197. 35 Ibid.; Novia, C, Nollywood Till November: Memoirs of a Nollywood Insider, op. cit., p 90; it has been reported that the sale of pirated copyright goods is not limited to local markets, but extends to the exportation of pirated CDs to other African countries, International Intellectual Property Alliance, “2007 Special 301 Report” (2007) available at http://www.iipa.com/rbc/2007/2007SPEC301NIGERIA.pdf, pp 349–353, p 349 (accessed 18 March 2013). 36 Tade, O and Akinleye, B, “We Are Promoters Not Pirates: A Qualitative Analysis of Artists and Pirates on Music Piracy in Nigeria” (2012) 6 (2) International Journal of Cyber Criminology, pp 1014–1029, pp 1014–1015. 37 Ibid., pp 1018–1019. 38 Kporku, W, “Alaba Traders Slam Musicians: You’re Original Pirates!” (2009) formerly

available at http://www.modernghana.com/movie/5619/3/alaba-traders-slam-musiciansyoure-original-pirate.html (accessed 18 March 2013); International Intellectual Property Alliance, “2007 Special 301 Report”, op. cit., p 349.

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in a bid to expand their audience, albeit illegally.39 In spite of the staunch rebuttals of Alaba marketers, this response appears to contain an admission of some illegal activity. The Nigerian Copyright Commission (NCC) has made repeated efforts to clampdown on the illegal activities in Alaba market, and while they may have reduced the spate of such activities,40 the market still appears to thrive as the centre of the major distribution network for hard copies of popular music in West Africa.41 Despite the foregoing, it has been asserted that the concept of piracy as a tool for the promotion of burgeoning performing authors is common to developing countries,42 and a similar situation appears to be operational in Vietnam’s developing media industries.43 Furthermore, it has been argued that the distribution systems set up by dealers in pirated works in Nigeria, has served as the structural foundation for the subsequent transmission to legal distribution of copyright works.44 Moreover, Larkin asserts that organised piracy such as occurs in developing countries, creates its own aesthetics in the processes of retrieving and transmitting data.45 Consequently, performing authors and record labels seeking to market their work using the distribution systems built on piracy networks may be forced to conform to the system’s aesthetic values. This argument 39 Kporku, W, “Alaba Traders Slam Musicians: You’re Original Pirates!”, op. cit.; “Pirated Movies and Music from Alaba Market Used to Be Found Across the Whole of Nigeria”, op. cit. 40 It has been noted that the NCC has carried out raids destroying copies of pirated CDs, and has engaged in anti- piracy awareness campaigns in Alaba market, “NCC Steps up Piracy War Against Alaba Market” (24 August 2011) The Guardian Nigeria, available at http://www.ngrguardiannews.com/index.php?option=com_content&view=art icle&id=58802:-again-osun-osogbo-lures-devotees-tourists-to-the-grove&catid=74:arts& Itemid=683 (accessed 18 March 2013); Tade, O and Akinleye, B, “We Are Promoters Not Pirates: A Qualitative Analysis of Artists and Pirates on Music Piracy in Nigeria”, op. cit., p 1015. 41 “Pirated Movies and Music from Alaba Market Used to Be Found Across the Whole of Nigeria”, op. cit.; Kporku, W, “Alaba Traders Slam Musicians: You’re Original Pirates!”, op. cit. 42 Domon, K and Lam, TD “Profitable Piracy in Music Industries” (2009) 6 (1) Review of Economic Research on Copyright Issues, pp 1–11, p 1. 43 Ibid., p 8. 44 Larkin, B, Signal and Noise; Media, Infrastructure, and Urban Culture in Nigeria

(Duke University Press, Durham and London, 2008), p 218. 45 Ibid., p 218.

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and its relationship to the genre of Afro-Pop (also known as Afrobeats) will be discussed further in this book.46 It has been asserted that distributors in Alaba international market have cooperated with the Nigerian Copyright Commission to legalise their business operations by paying licence fees for the duplication and sale of copyright protected music.47 Accordingly, business arrangements where performing authors transfer distribution rights to certain distributors in Alaba market appear to have become the norm.48 Be that as it may, the business arrangements made by distributors in their interactions with performing authors and their agents have still been criticised for poor documentation and accountability. According to a performing author who was interviewed for this bookPirates have become legal….it is impossible to obtain sales records from the pirates, and musicians suffer from the losses. I was given an advance of $60,000 for my first album by the distributors, and nothing further despite appeals and complaints.49

Distributors operating in the market have reportedly admitted to paying significantly smaller sums for licences to promote the work of burgeoning performing authors, in comparison to the amounts they pay for established performing authors as a result of the risks which may be involved in marketing the works of new entrants.50 Although the payments may be made before the sale of the work, the eventual sales records are rarely if ever, disclosed to the performing author. In the traditional practices of global music business, advances paid by recording companies to 46 Infra, Sect. 3.5. 47 “Pirated Movies and Music from Alaba Market Used to Be Found Across the Whole

of Nigeria”, op. cit.; Tade, O and Akinleye, B, “We Are Promoters Not Pirates: A Qualitative Analysis of Artists and Pirates on Music Piracy in Nigeria”, op. cit., p 1015. 48 Kporku, W, “Alaba Traders Slam Musicians: You’re Original Pirates!”, op. cit.; Tade, O and Akinleye, B, “We Are Promoters Not Pirates: A Qualitative Analysis of Artists and Pirates on Music Piracy in Nigeria”, op. cit., p 1024. 49 (13 February 2012) Interview with Anonymous —Singer, Songwriter, Producer, Record Label Executive. 50 Okparaocha, C, “Alaba Market, Where Piracy Is Big Business” (January 19, 2013) Nigerian Tribune, available at http://www.tribune.com.ng/news2013/index.php/en/col umns/2012-11-27-08-59-07/borderless/item/3362-alaba-market-where-piracy-is-big-bus iness (accessed 16 March 2013).

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performing authors may be recoupable or non-recoupable, and when recoupable, the record label may deduct the advances from the royalties that accrue to a performing author before remitting the balance to them.51 ‘Advances’ in the Nigerian system are thus different from the concept of advances used in the traditional structure of the global record business. Burgeoning performing authors do not appear to have the bargaining leverage to negotiate fair deals with distributors, and the situation is worsened by the contention that Alaba distributors have not been in the practice of disclosing accurate records of sales or paying mechanical royalties based on the number of copies sold.52 This argument agrees with observations in the fieldwork for this book, where performing authors were seen to be very concerned with the pursuit of outstanding royalties.53 Furthermore, Alaba marketers and distributors may very well determine their involvement in the promotion of music projects proposed to them, on the basis of their own aesthetic values and their assessment of what is commercially viable music.54 Consequently, the fear of having masters rejected by Alaba marketers may influence performing authors in their creative processes, and they may mentally factor the aesthetic values of potential distributors in their authorial processes. This situation could effectively function to propagate certain aesthetics in place of the original creative direction that some performing authors would have.

3.4 The Nigerian Copyright Commission and the Regulation of Collective Administration for Music A portrait of the regulatory framework for copyright in the Nigerian music industry is essential for an appreciation of the structure of the industry and the administrative avenues through which Nigerian

51 Bagehot, R, Music Business Agreements, op. cit., p 138. 52 Interview with Anonymous —Singer, Songwriter, Producer, Record Label Executive, op.

cit. 53 Infra, Sect. 4.2.3. 54 Novia, C, Nollywood Till November: Memoirs of a Nollywood Insider, op. cit., p 8 and

p 90.

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performing authors may pursue the protection of their economic rights and their authorial autonomy. Therefore, this section describes the function of the Nigerian Copyright Commission as the regulatory body for copyright in Nigeria, and summarises the legal conundrum that has characterised the state of collecting societies in Nigeria. The establishment of the Nigerian Copyright Commission is a feature of the Nigerian Copyright Act of 1988, and it was inaugurated in 1989 under the portfolio of the Minister for Culture.55 However, despite the provisions of the 1988 Act,56 the subsequent transfer of the Nigerian Copyright Commission to the portfolio of the Ministry of Justice in 2007 has been held to be justifiable.57 In the Performing and Mechanical Rights Society case,58 the court’s decision justifying the transfer was made by relying on the constitutional discretionary powers of the President of the Federal Republic of Nigeria via which the President may assign any business of government to any minister.59 Be that as it may, arguments have been made regarding the court’s decision in this case highlighting the confusion that the transfer may causeAccording to the court, “culture” is one of the businesses of government and the President may assign the government business of culture to the Minister of Justice. The judge missed the point that what was transferred is not the business of culture but the business of copyright administration (there is a Minister responsible for culture) and the definition of the

55 Under the 1988 Act, it was established as the “Nigerian Copyright Council”,

section 30 Copyright Act, 1988 (Nigeria); prior to this time, the 1970 Copyright Act had no specific provision for an administrative body in charge of copyright issues, and the responsibility for different aspects of copyright law appears to have been shared between different government departments such as the Federal Commissioner for Trade, the Department of Culture and the Federal Ministry of Finance, Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 351. 56 Now revised and codified as Copyright Act C28, LFN 2004 (Nigeria); under section 51 (1) paragraph 21 of the Act, the “Minister” is defined as ‘the Minister charged with responsibility for culture’, and some of the responsibilities of the Commission in relation to copyright issues are determined by the Minister for Culture, section 34 (3) (f) Copyright Act C28, LFN 2004 (Nigeria). 57 Performing and Mechanical Rights Society Ltd/Gte v Nigerian Copyright Commission, Suit No FHC/L/CS/61/2007. 58 Ibid. 59 These powers are provided for in section 148 (1) of the Nigerian Constitution 1999.

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[Copyright] Act of “minister” to mean the Minister responsible for culture has not been amended.60

The Act provides that ‘the Commission shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name’.61 Accordingly, the framework for the responsibilities of the Commission in the Act specifies that the Commission shalla. be responsible for all matters affecting copyright in Nigeria as provided for in this Act; b. monitor and supervise Nigeria’s position in relation to international conventions and advise Government thereon; c. advise and regulate conditions for the conclusion of bilateral and multilateral agreements between Nigeria and any other country; d. enlighten and inform the public on matters relating to copyright; e. maintain an effective data bank on authors and their works; [and] f. be responsible for such other matters as relate to copyright in Nigeria as the Minister may, from time to time, direct.62 Further responsibilities of the Nigerian Copyright Commission which are provided for in Part three of the Copyright Act,63 include the responsibility to approve the operations of a collecting society in respect of the rights of copyright owners.64 The Act provides that ‘the Commission shall not approve another Society in respect of any class of copyright owners 60 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 352; The supremacy of the Constitution in all matters pertaining to the Federal Republic of Nigeria, clearly answers the legal question of the position of the Ministry of Justice in relation to the administration of Nigerian Copyright Commission, section 1 (3) Nigerian Constitution 1999; however the administrative relevance of the Ministry for Culture in relation to copyright issues may still be drawn by inference, especially since the website for the World Intellectual Property Office still cites the Ministry for Information and Culture in addition to the Nigerian Copyright Commission as the competent administrative bodies for copyright issues in Nigeria, http://www.wipo.int/members/en/contact.jsp?country_i d=128 (accessed 5 February 2020). 61 Section 34 (2) Copyright Act 2004 (Nigeria). 62 Section 34 (3) Copyright Act 2004 (Nigeria). 63 Part III Copyright Act 2004 (Nigeria). 64 Section 39 (1) Copyright Act 2004 (Nigeria); this responsibility was introduced under the Copyright Amendment Decree of 1992 by which the Nigerian Copyright Commission

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if it is satisfied that an existing approved society adequately protects the interests of that class of copyright owners’.65 As a result of this provision that recommends for a single collecting society per class of rights, the history and operations of collecting societies in Nigeria appear to have been marked with legal and administrative controversy, particularly since the operations of the British owned Performing Rights Society (PRS) were folded up in Nigeria in the 1980s.66 With the folding up of the operations of British PRS in Nigeria, the mandate they had from various copyright holders was subsequently transferred to Music Copyright Society of Nigeria (MCSN),67 and it has been argued that some right holders still maintain their mandate with MCSN.68 However, administrative and interpersonal disputes between MCSN and a government-recognised collecting society known as ‘Copyright Society of Nigeria’ (COSON) seem to have severely hindered the operations of collecting societies in Nigeria.69 In a series of administrative decisions and counter decisions by different administrations of the Nigerian Copyright Commission (NCC), both MCSN and COSON appear to have intermittently possessed operating licences at different times.70 The disputes between both parties thus appear to involve the NCC and have also been linked to executive orders of a past President.71 In 2005, after the reinstatement of the Director-General of the Nigerian Copyright may approve the operation of a single collecting society, Copyright (Amendment) Decree No. 98 of 1992 (Nigeria). 65 Section 39 (3) Copyright Act 2004 (Nigeria). 66 PRS (Performing Rights Society) is the British collecting society for performing rights

which was operational in Nigeria during the colonial era, and maintained its operations after Nigeria’s independence in 1960, Schultz, AJ, “Case Comment: Musical Copyright Society of Nigeria v Nigerian Copyright Commission” (2009) 20 (6) Entertainment Law Review, pp 232–235, p 233. 67 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 364. 68 Schultz, AJ, “Case Comment: Musical Copyright Society of Nigeria v Nigerian

Copyright Commission”, op. cit., p 233. 69 Ola, O, Copyright Collective Administration in Nigeria (Springer, Berlin and Heidel-

berg, 2013), p 79; Schultz, AJ, “Case Comment: Musical Copyright Society of Nigeria v Nigerian Copyright Commission”, op. cit., p 234. 70 Schultz, AJ, “Case Comment: Musical Copyright Society of Nigeria v Nigerian Copyright Commission”, op. cit., p 234. 71 Oguamanam, C, “Adewopo, NCC and Dream Killers” (November 30, 2005) Nigeriaworld, available at http://nigeriaworld.com/articles/2005/nov/306.html (accessed 27

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Commission who had been suspended by the President for three and- a half months, he is reported to have commented thusIt was the controversy about collecting society [sic]. We approved another collecting society, the MCSN. Of course, one would expect that certain interests would be threatened. It was unfortunate in the sense that when you look at the global picture, the issue will be: are these people not the rightful owners? Is there any superior right owner? But we should look beyond these conflicts and look at the artistes themselves. What we have seen in the last ten years is not too good for stakeholders in the music industry because we have artistes who are unable to earn money in form of royalties for the use of their works. So we should not personalize issues. What we should focus on is how we can develop this industry; how we can create wealth and how we can ensure that we fight piracy, which is killing everybody, including the economy.72

It therefore appears that the provision in the law allowing operations for only a single collecting society may be responsible for the long running legal battles in the Nigerian music industry, in which the economic rights of music authors may have been significantly undermined. This is so, because cases initiated by MCSN on behalf of right holders under them have been treated as lacking locus standi.73 In the late 2000s, a recertification process was carried out during which both MCSN and COSON were asked to reapply and were assessed upon the provisions of a new regulation,74 from which COSON emerged as the sole approved collecting society. As such it may be argued that on the basis of the result of this process, the activities of MCSN as a collecting society

February 2020); Musical Copyright Society of Nigeria Ltd v Nigerian Copyright Commission, Suit no FHC/L/CS/478/08; Musical Copyright Society of Nigeria Ltd v Nigerian Copyright Commission, Suit no FHC/L/CS/35/08; Musical Copyright Society of Nigeria Ltd v Nigerian Copyright Commission, Suit no FHC/L/678/10. 72 Adewopo, A, quoted in Ola, O, Copyright Collective Administration in Nigeria, op.

cit., p 49. 73 Disc Technologies Ltd v Musical Copyright Society of Nigeria Ltd, Case no CA/L/787/2008; Musical Copyright Society of Nigeria Ltd v Details Nigeria Limited, Suit no FHC/L/ICS/434/95; Musical Copyright Society of Nigeria Ltd v Ade Okin Records, Suit no FHC/L/CS/216/96. 74 Copyright (Collective Management Organizations) Regulations 2007 (Nigeria).

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thereafter became illegal.75 This is because the Act limits the operations of unlicensed collecting societies by the following provisionNotwithstanding the provisions of this Act or any other law, no action for the infringement of copyright or any right under this Act shall be commenced or maintained by any person(a) carrying on the business of negotiating and granting of licence; (b) collecting and distributing royalties in respect of copyright works or representing more than 50 owners of copyright in any category of works protected by this Act, unless it is approved under section 39 of this Act to operate as a collecting society or is otherwise issued with a certificate of exemption by the Commission.76

Although the matter is one to be decided by law, the facts and the history of what may be considered accidentally rotated approval for both COSON and MCSN, have led to an apparent stalemate in the functions of collective management for music copyright in Nigeria. Additionally, the law’s recommended operation of a single collecting society may raise concerns relating to the perpetuation of an economic monopoly and the freedom of copyright holders to collect their royalties using agents of their choice. With regard to the problem of monopolies, elements of the court’s reasoning against MCSN in the case of MCSN v Details may now be rephrased and used to argue against the sole operations of COSON. In this case, the court held that, It is absurd to assume that a de facto monopoly which is involved in the administration of the works of composers and authors [in that case] of over two (2) million members worldwide with only a small proportion of them in this country should be given a free reign by the Government.77

Accordingly, it may be argued that the operation of market forces should be allowed to influence the number of operational collecting societies 75 Asein argues that the approved activities of MCSN were essentially terminated even before then, in 1992, Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 364. 76 Section 17 Copyright Act 2004 Copyright Act 2004 (Nigeria); emphasis added. 77 Musical Copyright Society of Nigeria Ltd v Details Nigeria Ltd, Suit no

FHC/L/CS/434/95.

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in Nigeria. This would not negate the need for a regulatory framework, but would rather enhance competition and provide more robust protection and representation for rights holders, and particularly for performing authors.

3.5 The Developments in the Genre of Afro-Pop Since the Mid-1990s In discussing the structure of the Nigerian popular music industry, it is necessary to briefly highlight the developments in Nigerian popular music in the period since the mid-1990s, as the activities in this period are the basis on which the arguments in this book are made.78 The significance of commencing research from the mid-1990s is due to the defining moment characterised by the rise of certain Afro-Pop sensations and the sociological conditions that resulted in the genre and umbrella term now known as Afro-Pop, or colloquially, Afrobeats. As noted earlier in this chapter, Junior and Pretty are generally believed to have been ‘the first Nigerians to rap in pidgin [broken English] and make the music local’.79 Music projects of this nature were not popular prior to the group’s debut, and having received critical and commercial acclaim from the mid-1990s until Junior’s death in 2005, they have been described as the first Afro-Hip hop group in Nigeria.80 According to Obi Asika, the CEO of Storm 360, a West African entertainment company, his company discovered the duo of Junior and Pretty on their television show ‘Clapperboard Weekend Raps’ in 1992,81 and by 1994, songs like

78 This is because of the stylistic developments that birthed the genre of Afro-Pop also

known as Afrobeats, and the concern that the sociological and economic viability of all musical creativity in the Country may be erroneously assessed through the lens of a single genre. 79 Oduok, U, “Ladybrille Exclusive: Interview with Storm Records’ Music Mogul, Obi Asika”, available at http://ladybrille.blogspot.com/2007/08/ladybrille-exclusiveint erview-with.html (accessed 25 February 2020). 80 http://www.storm360degrees.com/about-us/ (accessed 2 March 2013); Augoye, J, “Flashback: Junior and Pretty” (August 10, 2012) Punch, available at http://www. punchng.com/entertainment/e-punch/flashback-junior-and-pretty/ (accessed 2 March 2013). 81 Oduok, U, “Ladybrille Exclusive: Interview with Storm Records’ Music Mogul, Obi Asika”, op. cit.

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their Monica, had become nationally popular.82 Other Nigerian artists and bands whose music defined the era include the Remedies, Plantation Boys, Alex O and Alex Zitto.83 Some of the songs from that era up to present times have been rap, but Nigerian musicians singing other music styles have also interwoven local musical aesthetics with lyrics that include English, Nigerian pidgin, and Nigerian and African languages. The genre of music they created was initially called Fufu Flavour,84 but has now become known as AfroPop, often used interchangeably with the catch-all term Afrobeats,85 or Naija Hip Hop.86 The name of the genre reflects how it features the fusion of older West African genres like High-Life and Afrobeat,87 with Black diaspora influence including African American Hip Hop culture and Caribbean Reggae sounds. In the period between the 2000s and 2020, the industry has been defined by the illustrious careers of several artists including Femi Kuti, Seun Kuti, Tuface, PSquare, Sound Sultan, Dare Art Alade, Tosin Martin, Tiwa Savage, Praiz, Omawumi, Waje, Ruby Gyang, MI Abaga, Jesse Jagz, Simi, Yemi Alade, Timi Dakolo, Wizkid, Adekunle Gold, Davido, Burna Boy and Mr Eazi, to name a few. Furthermore, songs by such artists have begun to gain global recognition in the radio charts of other countries.88

82 Shonekan, S, “Nigerian Hip Hop: Exploring a Black World Hybrid”, in Charry, E (ed), Hip Hop Africa: New African Music in a Globalizing World (Indiana University Press, Indiana, 2012). 83 Nwonwu, FC, “Nigeria Music Conquers Africa: Eyes the World”, op. cit.; Abiola, A, “The Power and Glory of Naija Music”, op. cit. 84 The name Fufu Flavour was significant of the ease with which the beats in this genre appealed to the common Nigerian on the streets, Ademola, O, “Pioneers of Naija Hip Hop Music”, op. cit.; Shonekan, S, “Nigerian Hip Hop: Exploring a Black World Hybrid”, op. cit. 85 Afrobeats is a colloquial term, not to be confused with Afrobeat, a music style and socio-political movement created by Fela Kuti. 86 “Naija” is a word that is often used colloquially by Nigerians in place of “Nigeria” or “Nigerian”. 87 Afrobeat is a distinct sub-genre pioneered by Fela Kuti, and is one of the sounds that falls under the umbrella term of Afro-Pop also commonly known as Afrobeats. 88 Leight, E, “Davido’s ‘Fall’ Is Finally Catching on in the US, But It Should Be Bigger” (January 20, 2019) Rolling Stone, available at https://www.rollingstone.com/ music/music-features/davido-fall-us-radio-shazam-780079/ (accessed 15 January 2020); Duthiers V and Kermeliotis, T, “Afrobeats: The New Sound of West Africa That’s Going

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In the industry’s growing wave of internationalisation, some of these artists have signed a variety of deals with foreign recording companies such as RCA and Columbia,89 but the practical and strategic implications of these deals remain to be seen. As discussed earlier in this chapter,90 artists in this era have employed new marketing and distributing methods by using the local distribution networks that had been responsible for the growth of the Nigerian movie industry, Nollywood.91 What may have seemed as the ingenious dependence on local marketers at the time,92 gradually evolved to the state where it came to influence the aesthetic values that are now characteristic of Afro-Pop.93 The innovativeness of the industry’s distribution methods are also visible in its reliance on mobile telecommunications technology through ‘the ringtone, the ring back tone, the music download, and the music stream’.94 The live music scene in Nigeria and among Nigerians in the diaspora has always been known to be a vibrant part of the industry’s activities. Additionally, corporate endorsement schemes have now also become standard fare in the industry’s execution of music business.

Global” (December 19, 2012) CNN , available at https://edition.cnn.com/2012/12/ 19/world/africa/afrobeats-music/index.html (accessed 15 January 2020). 89 Leight, E, “Davido’s ‘Fall’ Is Finally Catching on in the US, But It Should Be Bigger”, op. cit. 90 Supra, Sect. 3.3. 91 Ademola, O, “Pioneers of Naija Hip Hop Music”, op. cit. 92 The use of local marketers appears to have now become the norm, and it has been

asserted that they are the kings of the music business, ibid. 93 Supra, Sect. 3.3; Larkin, B, Signal and Noise; Media, Infrastructure, and Urban Culture in Nigeria, op. cit., p 218. 94 De Beukelaer, C and Eisenberg, AJ, “Mobilising African Music: How Mobile Telecommunications and Technology Firms Are Transforming African Music Sectors” (2018) Journal of African Cultural Studies, available at https://www.tandfonline.com/ doi/abs/10.1080/13696815.2018.1546569?journalCode=cjac20, pp 1–23, p 6 (accessed 25 February 2020); “Spotlight on Nigeria; Delivering a Digital Future”, (2018) GSMA Report, available at https://www.gsma.com/publicpolicy/wp-content/uploads/ 2019/02/GSMA-Spotlight-on-Nigeria-Report.pdf (accessed 25 February 2020).

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In the past decade, the industry has indeed experienced numeric growth in its creative output, witnessed structural challenges and adjustments, and is currently enjoying increased continental and global significance.95 Notwithstanding the evident economic progress in the industry, the concern of this book is that reliance on progress made hitherto, and attempting to perpetuate same by interpreting viability in music authorship through the lens of what is already successful, may be counterproductive. It may lead to encroachments upon the creative autonomy of performing authors, and could eventually stultify an internationally burgeoning industry.

3.6

Conclusion

The goal of this chapter was to depict the roles, development and peculiarities in the Nigerian music industry, with a view to setting the stage for the empirical analysis that will be reported in Chapter 4. The chapter argued that in the Nigerian context, despite the assertions that the industry has no structure, various roles in the market for music and in the regulatory administration of copyright suggest otherwise.96 The transition of former pirates into legal distributors of popular music was noted as having potentially contributed to creative values in the industry, and it was observed that their role in the market may also serve as an economic influence particularly on burgeoning performing authors. Furthermore, the role of the Nigerian Copyright Commission and the effect of the de jure monopoly established for collecting societies in Nigeria were discussed. It was thus noted that the trends between the mid-1990s and the present time, have consolidated the development of a popular music genre known as Afro-Pop. Finally, the importance of creative autonomy as a necessary ingredient for the sustained growth of the industry was noted. 95 Oduok, U, “Ladybrille Exclusive: Interview with Storm Records’ Music Mogul, Obi Asika”, op. cit.; “Why Nigerian Artists Dominate BET’s ‘Best International Act’ List”, available at http://www.thisisafrica.me/music/detail/1700/Why-Nig erian-artists-dominate-BET’s-%22Best-International-Act%22-list (accessed 4 March 2013); “Nigerian Artists Dominate MTV African Music Awards [MAMA]” (2010), available at http://www.gistexpress.com/2010/12/12/nigerian-artists-dominate-mtv-africanmusic-awards-mama/ (accessed 4 March 2013); “Nigeria Dominates Channel O Music Video Awards” (2012), available at http://allafrica.com/view/group/main/main/id/000 21037.html (accessed 4 March 2013). 96 Supra, Sect. 3.3.

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Accordingly, the next chapter will report the information obtained from creative and executive figures in the Nigerian popular music industry, which identifies the status of creative autonomy available to performing authors. It will also proffer a working definition for ‘creative autonomy’.

CHAPTER 4

An Empirical Analysis of the Status of Performing Authors’ Creative Autonomy

4.1

Introduction

Having identified the structure of the Nigerian popular music industry in Chapter 3, this chapter undertakes a narrative of the empirical data which was collected for the purpose of this book from various players in the Nigerian popular music industry. This book makes a case for the creative autonomy of performing authors in the context of their interactions with record label executives, and it questions the responsibility of copyright law for the status quo. Thus, this chapter will discuss the objectives and methodology of the empirical exercise conducted for this book, and will focus on depicting the status quo as observed from the participants in this study. This introduction will summarise and highlight some of the observations that will be reported in further detail in this chapter. In the process of conducting interviews of performing authors in the Nigerian popular music industry, it was observed that for majority of performing authors,1 their first songs were inspired by personal experiences rather than targeted market formula or a desire for commercial success. It was also observed that for most of them,2 music authorship is or should be about self-expression. However, it was observed that in 1 79% of the performing authors interviewed began their authorial careers in what appears to be introspective circumstances, rather than market-oriented activity. 2 65% of performing authors.

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the practice of their vocation, they maintain approximately equal levels of consideration for self-expression and adherence to commercial music trends. Half of the sample stated that they were required by their labels to pay close attention to commercial trends and to reflect these trends in their music. Nevertheless, it appeared that this practice within the music industry had not negatively affected the desire of many performing authors to secure recording contracts. This was evident in the fact that despite the argument that the internet and social media can serve to launch independent careers in popular music, almost all of the artists interviewed have either had, currently have, or desire to have recording contracts.3 In defence of their desires to practice their profession under the auspices of a recording contract, performing authors argue that recording contracts provide the financial and structural platforms they need. The information obtained from the interviews will be discussed further in this chapter,4 and is graphically depicted in Fig. 4.1. As regards record label executives on the other hand, it was observed that for half of the sample, self-expression was considered the top priority in music authorship. However, for the other half, self-expression was least important in music authorship. In analysing this particular finding, it was further observed that all the executives who selected self-expression as the top priority in music authorship, also work as performing authors and had previously been involved in recording contracts in this capacity. Consequently, the priorities of the record label executives who did not prioritise self-expression were further explored, and for them, it was observed that their ideals in order of prominence were the goals of connecting with an audience and making money. An interviewee further explained his ideals by stating that making money was indeed the primary goal, and that connecting with an audience was the only method to achieve the goal of making money. The juxtaposition of the information in this segment alone, suggests that business decisions in the music industry that are made on the basis of the ideal of making money, may be at the expense of self-expression. Quite different to the views held by record label executives as seen in the preceding paragraph, when stakeholders from various sectors of the

3 95% of the performing authors interviewed. 4 Infra, Sect. 4.2.

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100% 90% 80% 70% 60% 50%

Series 1 40%

Series 2

30% 20% 10% 0% Authorship initially Music authorship Equally conscious of Required by Label Artists who have, or want a recording to adhere to inspired by personal should be about self self expression and contract commercial trends commercial trends expression experience in music authorship

Fig. 4.1 Summary of observations from performing authors

industry were interviewed, it was observed that majority of them viewed self-expression as the paramount priority in music authorship. For them, the alternative ideals of money-making and music as a means of communicating a message were both secondary. In relation to the question of priority of ideals in music authorship, the summary of the findings from the three groups of participants in the data collection for this book is graphically depicted in Fig. 4.2. 4.1.1

Objectives and Methodology

In the first stage of the fieldwork for this book, semi-structured interviews were conducted of thirty-two participants over a two-month period. The participants interviewed were classified into three segments of the Nigerian popular music industry; performing authors, record label executives, and stakeholders from various professions related to the music industry. The stakeholders interviewed included managers, studio

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70.00% 60.00% 50.00% 40.00%

Self-expression

30.00%

Money making Connecting with an Audience

20.00% 10.00% 0.00% Performing authors

Record Label Executives

Stakeholders

Fig. 4.2 Priorities in music authorship, as viewed by different roles in the Nigerian popular music industry

producers, owners of music satellite television stations, entertainment lawyers and music publishers. The primary objective of the research was to assess the dynamics of the relationship between performing authors and their labels in order to ascertain whether the relationship had any effect on the creative output of the performing authors interviewed.5 As such, the questions asked were aimed at establishing the followinga. The extent to which record labels rely on commercial indices in their decision-making processes; b. The level to which performing authors are commercially influenced in the creation and performance of songs, whether through their labels or by their independent studies of the market; and c. The level of awareness and dependence on copyright law at the various levels of business in the Nigerian popular music industry. This will be presented by showing the observations from performing authors, record label executives and industry stakeholders regarding the following termsa. The authorial process; b. The dynamics of copyright exploitation contracts; and c. The awareness, understanding and dependence on copyright law. 5 Subsequently, Chapter 8 of this book will show how certain provisions in copyright law can be responsible for the nature of these interactions.

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While this book focuses on the experiences of performing authors, record label executives were also interviewed in order to achieve an objective analysis of the situation. Other stakeholders were included in the exercise in order to provide a control for ascertaining the information provided by both performing authors and record label executives with regard to the music business and copyright in Nigeria. Data was recorded by means of a Dictaphone, and has been transcribed and archived in keeping with conventional research practices. The collection of data was primarily done in Lagos and Abuja, two Nigerian cities where the music industry is thought to have the most commercial relevance and prominence, and some participants were interviewed in London.

4.2 4.2.1

Performing Authors

Performing Authors’ Perspective on Music Authorship

The questions asked in this section were intended to observe the motivation for authorial work in popular music, and to determine the extents to which commercial considerations influence the creativity of the performing author. Twenty-one performing authors, with experience ranging from one year to forty-eight years in the popular music industry, participated in the study. The information obtained from them will be highlighted here and in some instances will be represented in figures and charts. 4.2.1.1 Ideals in Song Writing As it relates to music authorship, the participating performing authors were asked how they viewed song writing and were given three options from which to identify their priorities. The options given to them to choose from, and the popularity of the response in percentages were as follows: • a way of self-expression = 65.2% of sample; • a way of connecting with an audience to pass a message = 30.4% of sample; • a way of making money = 4.3% of sample.

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A way of self expression A way of connecƟng with an audience to pass a A way to make money

Fig. 4.3 Performing authors’ perspective on song writing

It was observed that performing authors appear to have the predominant view of song writing as a means of self-expression, rather than an avenue through which to make money, or a means to communicate a message to the public. This was also emphasised by the observation that 82% of the sample stated that their first songs were inspired by personal experiences ranging from spiritual inspiration to overcoming personal difficulties (Fig. 4.3).6 4.2.1.2 Concerns in the Authorial Process Despite the foregoing, it was observed that in the process of writing and recording a song, performing authors maintain averagely equal consciousness of their fan base and music trends on the one hand, and their desires to express themselves on the other hand. When asked how conscious they were of their fan base and trending styles of music in the process of writing and recording songs, (on a scale of 0–10, with 0 as not being conscious at all, and 10 as being very conscious) the average answer given by the participants was 5.2. The lowest was 0, highest was 10 and the mode was 7. The control given for this question was self-expression, also termed as personal creative bent.

6 Other sources of inspiration that were cited included fellow musicians, culture and the socio-political climate of the country and the world.

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Consciousness of music trends and preferences of fan base Consciousness of desires for self expression

Fig. 4.4 Predominant concerns in the authorial process

The sample in this section of the study often used the term selfexpression interchangeably with ‘creativity’ and ‘personal choice’. With a 5.2 level of consciousness for fan bases and trending music, it therefore appears that while performing authors are concerned about authorial independence and creative autonomy, they are almost equally keen to write and release music that is considered trendy (Fig. 4.4). 4.2.1.3

The Impact of the ‘Performing Author–Record Label’ Relationship on the Creative Process In further efforts to assess this issue, participants were subsequently asked why they maintained any consciousness of current musical trends and fans’ expectations in their authorial processes. More than 50% of those who answered this question stated that their record labels had directed them to do so. As such, it appears that there is a correlation between performing authors’ relationship with their record labels, and the level of attention they give to commercial considerations like fan base’ preferences, and musical trends. The actual figures observed showed the instruction of record labels as the predominant reason at 55.5%. Other reasons given were the widespread use of local lingo in Nigerian popular music, and actual feedback of fan base preferences, but these only had the combined

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strength of 22.2%. The other 22.2% of those who answered this question were more concerned about music as an art form. In determining whether the relationship between record labels and performing authors had a significant role in the determination of the music they released, it was important to assess the popularity or otherwise of having a recording contract, as opposed to independent popular music careers among the participating sample. From this exercise, it was observed that of the 21 performing authors interviewed, 42.8% had existing record deals, while 14% had previously had record deals that had either ended or were unsuccessful. The remaining 42.8% had never been in recording contracts, but some of the sample had management contracts that appeared to function in some similarity to recording contracts.7 Nevertheless, observing the participating performing authors as a composite whole, it was observed that 95% of the sample currently have, have had in the past, or hope to have in the future, recording contracts with record labels. These figures were important because when performing authors were asked what comments their labels or management teams had made regarding their songs and their song writing at the beginning of their contracts, 60% of the sample stated that they had felt external pressure from their labels or management team to be more commercial in their expression. The trend further appears to have prompted some of them to opt out of their contracts, because 20% of this number stated that they had terminated their recording contracts because of what they perceived as pressure to make their music sound more commercial. Of the rest of the sample, 30% said their labels and management teams accepted their musical styles and had not pressured them to alter their sound, and 10% stated that they were independent and had felt no such pressure (Fig. 4.5). 4.2.1.4 Numeric Effect of the Status Quo on Cultural Output The study then sought to assess the effect of the relationship between performing authors and record labels on cultural output, by assessing the

7 Some of the performing authors who had management contracts narrated their managers’ responsibilities to expose their music to the public by finding shows and festivals where they can perform and studios where they can record. Also, the performing authors interviewed noted that their managers often attempt to influence their creative processes, possibly in hopes that their commission-based payments would be higher.

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Percentage of Performing Authors Pressured to Commercialize their Authorship Independent performing authors facing no such pressures Performing authors whose labels or management teams accepted their creaƟve procliviƟes

Percentage of Performing Authors Pressured to Commercialize their Authorship

Performing authors facing external pressure from labels or management teams to commercialize their authorship 0

20

40

60

80

Fig. 4.5 Pressure to commercialize authorship

ratio of songs the participants had written or recorded, in comparison to what they had released. From the figures given by all the participants who answered this question, it was observed that the ratio of written songs to released songs stood at 8:2. If this figure is taken as representative of the Nigerian popular music industry, it implies that the industry currently functions on 20% of its discovered creative resources, not taking into consideration its undiscovered authors (Fig. 4.6). 4.2.1.5 Methods of Choosing Songs for Release to the Public Having observed that performing authors’ relationships with their record labels appear to have significant effects on their creative autonomy and the numeric volume of their musical output, the subsequent questions therefore sought to identify the avenues through which these relationships influence the creative processes of performing authors. The methods of selecting songs for commercial release were explored, and when the participating performing authors were asked what indices were used in determining such songs, certain factors were repeated in the answers received. They were-

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RaƟo of wriƩen songs to released songs

WriƩen songs Released songs

Fig. 4.6 Current cultural output: ratio of written songs to released songs

a. labels’ decisions; b. a combination of label and performing authors’ opinions; and c. a combination of performing authors’ opinion and the opinion of a sample target audience.8 It was thus observed that in certain instances, performing authors’ opinions were considered in the process of selecting songs for release. However, their personal opinions were never seen as the sole consideration in such decisions. For the purpose of this section, it may be plausible to combine the perspectives of record labels, artist managers and sample target audiences, and broadly categorise their input as decisions influenced to some degree by ‘commercially oriented opinions’. Using this categorisation, it was noted that 73% of the time, the choice of songs for

8 “Sample target audience” was explained by Abraham Kolo, CEO of Iroko records to mean ‘a cross section of the population who may be friends, but who are unbiased, and are representative of our proposed listeners and buyers’ (7 February 2012) interview with Abraham Kolo, CEO Iroko Records.

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public release is influenced by the commercially oriented opinions identified above. Other less common factors considered in the selection of songs for release to the public were identified as followsa. socio-political climate; b. availability of funds; and c. relevance of a song to the musical project in issue. Again, if the three indicators above are broadly classified as decisions based on ‘administrative and practical concerns’, they constitute only 22.7% of the index. As has been highlighted here, it was observed that none of the participants stated that the decision of which songs to release was a decision they made independently; it was always motivated by either commercial or administrative concerns. These findings suggest that threequarters of the available music in the Nigerian popular music industry is commercially influenced by the interactions of performing authors with labels, management teams and sample target audiences (Fig. 4.7). Notwithstanding the foregoing, it should be noted that 63.6% of the performing authors interviewed, claimed to have a say in the decision of which songs to release. In the light of this claim, participants were then

Factors Considered in the Determination of Songs Released to the Public

Administrative indices Factors Considered in the Determination of Songs Released to the Public Commercially motivated indices

0

20

40

60

80

Fig. 4.7 Methods of choosing songs for release

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asked whether their recommendations of songs to release had ever been turned down by their labels and if these rejected songs were songs they personally liked. Of those who answered this question, it was observed that majority of them had the experience of having their songs turned down by their record label, management team or sample target audience. 65% of the sample had made proposals that were rejected, while 35% had not had this experience. From the participants’ answers, it was observed that more than half of the time (54%), record labels turned down performing authors’ suggestions for commercial reasons.9 Furthermore, most of those who answered this question stated that the rejection of their suggestions was often hurtful, because the songs rejected were songs they particularly personally favoured for release. Specifically, their answers showed that 70% of them had been unable to release songs they particularly liked because their labels disagreed with the songs and did not consider them commercially viable. 20% of them stated that because they were independent and were only turned down by sample target audience opinions, they proceeded to release the songs they favoured, regardless. Only 10% of the sample stated that they trusted their label’s decisions in rejecting some of their songs. 4.2.1.6 Unveiling the Participants in the Authorial Process In the actual processes of writing and recording a song, more than half (53.3%) of those who answered this question said that they had received suggestions and input from their labels regarding the lyrics, tune or beat of their songs, or some encouragement towards particular creative directions. Of the other half of the sample, 26.6% said their management teams and sample target audiences made suggestions on their authorial processes, while 20% had not experienced such interference or merely had role models. In the preceding question, the suggestions and inputs of record labels, management teams and sample target audiences had been classified as ‘commercially oriented’. Following this classification again, this implies that 80% of performing authors experience external involvement in their authorial processes, by commercially oriented roles. It may thus be asserted that commercially driven label executives are involved in the 9 Other reasons given were administrative reasons and differences in label and performing author’s concepts of creativity; but these reasons combined only made 46% while external commercially driven prerogative was used 54% of the time.

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Performing Authors whose record labels contribute to their stylistic and lyrical directions Performing authors whose management teams and sample target audience contribute to their authorial process Performing authors without external authorial influence besides role models

Fig. 4.8 Participants in the authorial process unveiled

actual processes of music authorship. The situation appears to be further compounded by the fact that, of the performing authors interviewed who currently have recording contracts or have had recording contracts in the past, 60% stated that they have had disagreements with their labels regarding the style or content of their songs (Fig. 4.8). 4.2.1.7 Creative Control In conclusion, the question of creative control was raised and it was observed that of the performing authors with recording contracts who were interviewed, their labels contractually have either partial or total creative control of their output 67% of the time. In 22% of the cases observed, performing authors retain creative control, and in 11% of the cases, negotiations were still pending.10 Thus among performing authors with record deals, their record labels mostly maintain considerable or decisive authority in determining the creative direction of the songs that they release. Creative autonomy, in terms of a performing author’s exercise of

10 The question of creative control is usually addressed in recording contracts and may not be included in management contracts. However, from the observations in this subchapter, it has been seen that management teams and sample target audiences also have significant influence in performing authors’ creative processes.

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Creative Control 80% 70% 60% 50% 40% Creative Control 30% 20% 10% 0% Label has partial/total Performing author creative control retains creative control

Negotiations still pending

Fig. 4.9 Performing authors and creative control of their careers

prerogative over the creative style and direction of their musical career is visibly low at a mere 22% of those interviewed. This phenomenon is emphasised by the fact that of the 10 independent performing authors who commented on this question without answering it directly, majority stated unequivocally that if they were ever to sign recording contracts, they would never be persuaded to part with creative control of their material (Fig. 4.9). 4.2.2

Concerns Arising from Copyright Exploitation Contracts

Despite the findings presented above which portray external threats to performing authors’ creative autonomy,11 most of the performing authors interviewed expressed a desperate need for the corporate and financial platforms that a record deal can offer. 65% of the sample had either signed or hoped to sign recording contracts, 30% had recording contracts in the past, and only 5% of the sample stated a desire to maintain independent

11 Supra, Sect. 4.2.1.

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careers in popular music.12 It may therefore be inferred that the business model that features record labels in contractual relationships with performing authors is still relevant in the Nigerian popular music industry. It may have been thought that widespread use of the internet and the advancement of digital technology in music would have reduced the relevance of this model, and that it may gradually render record labels obsolete. However, though the careers of independent artists like American Chance the Rapper and Tobe Nwigwe may have been launched using online social networking platforms and tools,13 infrequent supply of electricity and costly internet access in Nigeria may pose great challenges for independent performing authors in Nigeria.14 Notwithstanding the pervading desire for recording contracts among the sample, 40% of the sample asserted that their desires to maintain their copyright and creative control over their work were superior to their desires to sign recording contracts. Interestingly, all of the performing authors who held this opinion were maintaining independent careers. It therefore appears that there is a significant concern among performing authors for their creative autonomy, and that recording contracts may be viewed with a degree of suspicion by some performing authors. This was confirmed by the observation that 90% of those who have or have had recording contracts, admitted to having studied the contracts before signing them. The question still remains whether they understood what they studied and if at all they engaged the services of a lawyer to interpret their contract terms. Furthermore, studying the recording contract may not necessarily mean that they were able to negotiate the terms of the contract. When asked whether there were any provisions in their contracts by which they assigned their copyright to their labels, of the performing authors who answered this question, 68.8% were categorically against assignments of copyright. Rather, they favoured the practice of transmission of exclusive licences. All the same, it may be interesting to note that more than half of those against the total assignment of copyrights (40% of the 68.8%) were independent and did not have record deals. It 12 Supra, Sect. 4.1. 13 “Chance the Rapper Says Success as an Independent Artist Is Attainable If You’re

Patient” (27 December 2017) Billboard, available at https://www.billboard.com/articles/ news/8078732/chance-the-rapper-success-independent-artist (accessed 20 January 2020). 14 Infra, Sect. 7.3.

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may thus be instructive to consider this observation alongside the fact that majority of these independent performing authors interviewed also emphasised their desire for recording contracts, which they believe would provide the requisite financial and structural platform for their careers. In this regard therefore, it remains to be seen whether they would maintain their unflinching position regarding copyright assignments when faced with the proposition of a record deal. It was also observed that of all the participants who answered this question, none of them distinguished between the copyrights in lyrics, music and sound recording, and only one of them made reference to the distinction between publishing rights and mechanical rights. Nigerian copyright law, like the Berne convention,15 makes these distinctions clear. However, from the data gathered in this question, it appears that there is either no distinction in practice in the systems that constitute the Nigerian popular music industry,16 or performing authors do not know enough about copyright law to understand and require that distinctions are made in their recording contracts. It may also be the case that both problems exist. Again, when asked whether they made any contributions while negotiating the terms of their recording contracts, all those without record deals who commented on the question said that if they are offered deals in the future, they will negotiate the terms. However, of those who have or have had recording contracts, 70% contributed to the negotiation of their contracts, while 30% did not. Considering the stakes that are apparent in a recording contract, the percentage of those who did not contribute to the negotiation processes for their contracts is significant.17 Despite the fact that 70% claim to have contributed to the negotiating process, their bargaining leverage and their understanding of the copyright jargon that may be used in recording contracts may also be questioned, especially if they did not have legal representation.

15 Section 1 (1) Copyright Act C28, LFN 2004 (Nigeria); Article 2 Berne Convention 1886, and Article 1 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961. 16 Systems where this distinction may be more visible may feature highly organized and active publishing companies and collecting societies. 17 Infra, Sect. 8.4.2.

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Common Copyright Law Issues Encountered By Performing Authors 3.5 3 2.5 2 1.5 1 0.5 0 Publishing of songs

Fig. 4.10

4.2.3

Pursuing Grappling with Registering copyright outstanding a collecƟng noƟces society royalƟes

Piracy issues

Pursuing the enforcement of moral rights

Common copyright law issues for performing authors

Performing Authors’ Perspective on Copyright Law in Nigeria

When performing authors were asked whether they have had to deal with copyright issues before, it was observed that 42%, less than half of the sample, had been involved in some dealings with copyright law, while almost half, 47.6%, had no experience dealing with copyright law. The rest of the sample did not answer this question. The aspects of copyright that performing authors had been involved with are represented pictorially in Fig. 4.10. From the information obtained, the aspect of copyright law that performing authors are most concerned about is the pursuit of outstanding royalties.18 Also of significant importance to the performing

18 The administration and effectiveness of collecting societies in Nigeria may be related to the subject of creative autonomy by argument, but are not central to the concern of

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authors who answered this question, are the enforcement of moral rights and the registration of copyright notices, and both issues were related to their exercise of creative autonomy.19 However, two curious points were raised which were not corroborated by any other participants in the sample, and they were a claim that piracy can be beneficial, and a claim that copyright law is not reflective of Nigerian realities.20 An assessment of the veracity and implications of these points may be interesting. In general terms, the assertion that copyright law is not reflective of Nigerian realities may be based on the cultural needs of developing nations in the present information-driven generation. Be that as it may, these issues do not fall within the scope and purview of this book. In order to assess the levels of awareness of copyright law among performing authors, participants were asked whether they know how copyright protects them as music authors. Of those who answered this question, 48% of the sample claimed to know how copyright should work, however, 43% of the sample stated that they either did not know how copyright works, or that they knew very little and wanted to know more. This significant percentage admitting ignorance of copyright law corresponds with the observations earlier in this chapter which show that some basic education on copyright law is imperative for performing authors in the Nigerian popular music industry.21 In the final question for this segment, performing authors were asked regarding their opinions on the duration of copyright protection and the prevalent response supported perpetual copyright protection. However, it was observed that participants who answered this question did not go further to elucidate how perpetual copyright would benefit them in the exercise of creative autonomy. In answering this question, the participant who opined that the current copyright law is antiquated and does not reflect realities, argued that copyright duration should be subjective and

this book. Be that as it may, the dynamics of this issue were briefly discussed in Chapter 3 of this book; supra, Sect. 3.4. 19 Infra, Sect. 6.4. 20 An assessment of the veracity and implications of these points may be interesting. In

general terms, the assertion that copyright law is not reflective of Nigerian realities may be based on the cultural needs of developing nations in the present information driven generation. However, these issues do not fall within the scope and purview of this book. 21 Supra, Sect. 4.2.2.

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not fixed.22 He also argued that the law should ensure that the benefit of lengthy duration truly goes to authors. In this section, this appeared to be the most nuanced response in terms of authors’ concerns, even though the concern was not corroborated by any of the other participants, and its practical application may raise complexities. Moreover, the fact that the participant who expressed this concern had also been trained as a lawyer, may have informed his understanding and assessment of copyright duration in the Nigerian context.23 Again, the need for performing authors to be exposed to some basic concepts in copyright is reflected here. 4.2.4

Anecdotal Concerns

Besides the structured questions asked in the interviews, participants were asked if they had any anecdotal concerns they wished to express, and they raised certain issues regarding the working conditions in the Nigerian popular music industry. They were also asked to contact the researcher if their circumstances changed or if they had further information related to this book. 16 months later, some participants whose circumstances had changed were interviewed, and the narrative of their views will be reported.24 At the first stage of the fieldwork, the most popular concerns among the sample were as followsa. Beneficial Piracy—Some participants asserted that piracy may sometimes be beneficial for publicity, because sellers of pirated material are believed to have a wider market reach. This was argued to be the case both in terms of physical availability of the material as well as affordability. Some participants also argued that even if they attempt to promote their albums through legitimate means, the pirates are still able to obtain their work and mass produce it, generating more sales than the conventional music shops and retail outlets. As a result, some of the participants believed that through piracy, they may gain more notoriety with the public and may be able to secure

22 (20 February 2012) Interview with “Anonymous B”, Singer, Songwriter, Producer and Lawyer. 23 Ibid. 24 Infra, Sect. 4.6.

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endorsement deals and performance bookings at bigger venues and events. b. Impractical Laws—It was also observed that some participants believe that copyright in Nigeria as a legal concept does not bear much significance in practice. Some participants argued that generally speaking, Nigerians seem to be in a hurry to make financial gain and attain popular renown. Additionally, they asserted that people generally want free music and that there is thus a reduced focus on record sales and much greater focus on live performances and securing endorsement agreements. c. Non-Functional Collective Administration—Some interviewees asserted that a functional scheme for collecting and administering royalties is critically needed in Nigeria. The dynamics of the current feud between two music collecting societies in Nigeria were discussed earlier in this book, in the section that depicted the administrative and regulatory challenges that typify the system of collective administration in the Nigerian music industry.25 4.2.5

Defining the Ideals of Creative Autonomy

The aggregate of the information reported from performing authors reveals that creative autonomy entails the following ideals-26 a. prioritising self-expression in the authorial process, over the hope of commercial prospects to be realised; b. the performing author’s compelling vote in the choice of songs to disseminate; c. non-involvement of record labels in the authorial processes of performing authors; d. performing authors’ exercise of creative control over the creative direction of their careers; e. contractual terms that respect the autonomy of performing authors; and f. the freedom of authors to negotiate the terms of copyright exploitation contracts. 25 Supra, Sect. 3.4. 26 Supra, Sect. 4.2.1.

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It may be difficult to narrow the indices above into a succinct definition for creative autonomy. However, for the purpose of this book, creative autonomy may be defined as the absence of, or the ability to grapple with external pressure to reflect commercial trends in authorship.

4.3

Record Label Executives

Six record label executives were interviewed, and the questions posed to them sought to establish the amount of attention they pay to commercial considerations in determining their musical output, the extent to which they are directly or indirectly involved in the creative processes of performing authors, and the extent of their reliance on copyright law. 4.3.1

On the Creative Process

The questions in this section sought to assess the extent to which commercial indicators influenced record label executives in determining what songs to release. When asked what their views on music production and authorship were, participants were given three options to re-arrange in order of priority. Half of the sample selected self-expression as their top priority in music authorship, while the other half, considered selfexpression as least important. For this half of the sample, their opinions were split between money-making, and connecting with an audience to pass a message. Making money was clearly expressed as the priority in one instance, and in another instance, it was alluded to as a primary goal, which could only be achieved by effectively connecting with an audience. It was further observed that all the executives that also maintain careers as performing authors had selected self-expression as their top priority in this question. These findings suggest that record label executives who have not worked as performing authors may relate to their businesses differently from executives who have. In this regard, it may be interesting to undertake further study to observe the comparative commercial success levels of record label executives who hold either view, in relation to the levels of personal and creative fulfilment of the performing authors in their labels. However, that is not within the ambit of this book.27

27 This book makes the case for creative autonomy within copyright law, with specific regard to performing authors in the Nigerian popular music industry.

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Noting that self-expression was not a unanimous priority for these participants, they were then asked what their rules of thumb were in the process of selecting performing authors to work with. The most common answers given by the sample were talent and musical skill. However, other factors that were popular among participants in the selection of artists to work with were musical passion, consistency, artistic values and uniqueness of the performing author. The word ‘uniqueness’ was interchangeably used by the participants with other phrases such as ‘x factor’, ‘promotable image’ and ‘eye candy’ (Fig. 4.11). As regards commercial considerations in selecting songs for an album, the question sought to assess participants’ consciousness of music trends and the preferences of artists’ fan bases. For the entire sample, on a scale of 0–10, with 0 as not being conscious at all and 10 as being very conscious, the answers ranged from 2 to 10 and the average answer was 6. One of the participants dissected the question and gave separate figures for fan base’ consciousness and adherence to music trends, thus suggesting that both concepts are not necessarily always applicable in tandem. Nevertheless, with an average answer of 6, this figure suggests that record label executives are considerably influenced by commercial

Rules of Thumb Used by Record Labels in Selecting Performing Authors 4.5 4 3.5

Rules of Thumb Used by Record Labels in Selecting Performing Authors

3 2.5 2 1.5 1 0.5 0 Passion for music

Fig. 4.11

Talent and Artistic and Consistency Uniqueness/ true musical educated X-factor/ skill Promotable image/ Eye candy

Methods of selecting performing authors

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Average Level of Attention Record Label Bosses Pay to Music Trends and Preferences of Fan Base While Selecting Songs to Release 12 10 8 6 4 2 0

Average Level of Attention Record Label Bosses Pay to Music Trends and Preferences of Fan Base While Selecting Songs to Release Linear (Average Level of Attention Record Label Bosses Pay to Music Trends and Preferences of Fan Base While Selecting Songs to Release)

Fig. 4.12 Average attention of record labels to commercial indicators in the selection of songs for release

considerations in the decision-making processes for songs they release (Fig. 4.12).28 In their relationship with performing authors, 83.3% of the sample stated that they had rejected some of the songs written and proposed by performing authors, and the reasons given for rejecting songs were that some tunes were not catchy, or that the concept of the song was ‘not right’. The concept of a song being ‘not right’ was not elucidated. Participants also said that they rejected some songs because they were ‘too technical’. A generic term participants agreed to use for such seemingly vague answers was ‘commercial reasons’. Accordingly, participants were then asked how they chose songs for release. The answers given according to frequency are reported belowa. Commercial realities and project deadlines = 2 b. Results of in-house listening party = 2 c. Project-based artistic opinion = 1 d. Response of sample target audience = 1 e. The label’s opinion = 1 (Fig. 4.13). 28 This point will be revisited, and compared with the observations received from performing authors and stakeholders in the music industry.

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Commercial realities and project deadlines Results of in-house listening party Project-based artistic opinion Response of sample target audience The Label's opinion

Fig. 4.13

Record labels’ methods of selecting songs for release

It was observed that none of the label executives interviewed admitted to imposing their opinions on performing authors in the choice of songs to release. Yet, none of them cited the opinions of performing authors as a factor to be considered in making this decision. Furthermore, when asked whether they sometimes offer guidance as regards the lyrics, tune or beat of a song to any of the performing authors under their label, 100% of the participants answered in the affirmative. This practice may not have seemed staggering, except for the observation that 83.3% of the record label executives interviewed, admitted that there have been disagreements between them and their performing authors over style and lyrics of songs. While one of the participants in this segment notably stated that it is ill-advised to be too artistic for commerce and that disagreements were only natural29 it is evident from the information obtained that the ideals of record label executives and performing authors as it relates to music material can be divergent. One of the participating record label executives stated thus,

29 (21 February 2012) interview with Cobhams Emmanuel Asuquo, CEO Cobhams Asuquo Music Productions, CAMP.

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We define the artist when we choose to sign them on, and we restrict their expression to that definition. We don’t give room for exploring other musical possibilities.30

4.3.2

On Recording Contracts

Finally, regarding the standard terms of recording contracts issued by record labels, although all the participants stated that they share creative control of material with performing authors, half of the sample admitted that in cases where disputes occur between them and performing authors, the contract terms stipulate that record labels maintain the decisive say. Furthermore, while 67% of the sample said that they were open to negotiating contract terms with new performing authors they sign on, 33% of the sample said they would follow their standard contract forms strictly for the first option periods in a recording contract and are only open to negotiating the terms of subsequent periods. 4.3.3

On Copyright Law

As regards copyright law, all of the record label executives interviewed stated that they had been involved in dealings pertaining to copyright law, but half of the sample further asserted that the Nigerian music industry does not have the requisite framework for copyright law to function. Be that as it may, when asked how copyright facilitates their business as record label executives, 83.3% of the sample stated that they ensure that their business interactions with performing authors are clearly spelt out in contracts. This response suggests that discussions on copyright law in the context of record labels and performing authors must include the dynamics of exploitation contracts.31 Although the question was about copyright law, some of the responses were skewed, as participants highlighted a variety of problems which they argued plague the Nigerian music industry. Some argued that the Nigerian government is over-reliant on crude oil, does not consider the music industry as being economically viable, and is not particularly concerned with addressing the problems of the industry. Some also asserted that 30 (7 February 2012) interview with Abraham Kolo, CEO Iroko Records. 31 The evaluation of recording contracts will be undertaken later in this book, infra,

Chapter 8.

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the distribution system for music CDs in Alaba market is problematic, and that there is no functional, reliable scheme for collecting or administering mechanical royalties from Alaba marketers. They asserted that moral rights are barely respected and that piracy is rampant to the point that it is barely considered illegal. Some participants complained about poor education on copyright even among lawyers, and the fact that litigation on copyright issues is lengthy and discouraging. Some of the participants stated, and some alluded to the fact, that the result of these challenges was that concerts and endorsements had become the only hope of financial gain in the industry. Despite the varied issues that participants in this group gave, more than half of the sample emphasised that in the face of these challenges, legal facilitation is essential to them and they utilise legal counsel in the course of their work. They also expressed their reliance on the ideals of copyright law, especially with regard to international deals and their growing international audiences. It was observed that while there was a consensus among participants regarding the problems of copyright implementation in the context of the Nigerian music industry, they generally still make effort to ensure that their contractual positions are documented in detail. It was also observed that they maintain consciousness of, and adherence to, the provisions of copyright law, and they ensure that they have legal representation. As Audu Maikori, founding CEO of Chocolate City Entertainment, notedWe have many requests from around the world to license our music to other regions which we have had to review on a regular basis. Contracts are very important, and licensing across jurisdictions can be quite an issue without understanding the legal regime in those jurisdictions. No doubt, the fact that two of us are lawyers and have an understanding of copyright law is responsible for where we are today as a Label, since the business is based upon the creation and exploitation intellectual property. Also, because piracy has always been a challenge in Nigeria, we had to evolve a 360 deal model through which we could make money from other activities of the musician (live performances, endorsements etc.) since we couldn’t generate any revenue from CD sales alone—I daresay we evolved our own 360 model way before the rest of the world caught up with it in 2008 or so.32

32 (31 March 2012) Interview with Audu Maikori, CEO Chocolate City Entertainment.

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Regarding copyright duration, the opinions of participants varied from ‘life of the author plus 50 years’, to the view that said ‘the longer the better’. The most common views among the sample were that copyright protection should last for the ‘life of the author and 70 years’, as Nigerian copyright law currently provides,33 and that lengthy copyright protection is beneficial. Some of the less popular views were that copyright duration should be reduced to the life of the author and an additional 50 years, and an assertion that issues of copyright duration are foreign to Nigerian culture. However, going by the fact that 67% of the participants were generally in favour of the status quo, and in some cases, unspecified, lengthy copyright protection, the responses show that record label executives are comfortable and happy with the status quo. Finally, as it pertains to copyright law, participants were asked whether there were aspects of copyright law which they wished to adjust in order to improve the prospects of the Nigerian music industry. Participants suggested that due to the dynamic nature of society and of music business, it is important for copyright law to make room for regulations to be made, as and when needs arise. It was also asserted that the Nigerian Government would do well to pay more attention to intellectual property issues and entertainment as viable sources of revenue, and ensure that there are functional structures in place for business in the entertainment industries to thrive. With regard to their concerns about the effectiveness of copyright law in the Nigerian music industry and the problems which record label executives identified, it was observed that the major concern of record label executives as regards copyright law in Nigeria, is one of enforcement rather than discontentment with the principles of the law.

4.4

Observations from Stakeholders

The decision was made to interview other stakeholders in the music industry because it was expected that their views would serve as a control for the information obtained from performing authors and record label executives. The interviews in this section were less structured than the interviews of record label executives and performing authors, and the sample consisted of the following professions-

33 First Schedule, Copyright Act C28, LFN 2004 (Nigeria).

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a. an entertainment lawyer; b. two studio producers; c. the director-general of an embattled collecting society; d. the CEO of a media and entertainment company; e. an artist manager; f. a former music publishing executive; and g. a recording artist who does not author her material. Their years of experience in the industry ranged from four to twentyfive years, and majority (87.5%) of the sample had dealt with copyright issues in their profession, most popular of which was registering copyright notification for songs and pursuing the enforcement of copyright. 4.4.1

On the Creative Process

As it relates to priorities in music authorship, majority of the sample were in favour of self-expression, as opposed to the ideals of connecting with an audience and making money. In specific terms, 57% favoured music authorship as a way of self-expression, 29% viewed it as a way of connecting with an audience to pass a message, and 14% saw it as a way of making money. However, one of the participants opined that it was counterproductive for one person to have to focus on all three issues, stating that the Nigerian popular music industry should be specialised enough to have various roles focussing on each ideal.34 Participants were asked for their opinions regarding the appropriate level of commercial considerations in the process of writing and recording songs. Commercial considerations were indicated by consciousness of fan base preferences and consciousness of music trends. On a scale of 0 to 10, with 0 as not being conscious at all and 10 as being very conscious, an average of 6.7 was observed from participants’ answers. This figure suggests that participants consider such commercial considerations to be rather significant in the process of writing and recording music. Synthesising the findings from both questions above, they prima facie appear inconsistent because on one hand, participants favour selfexpression, and on the other hand, they emphasise the importance of

34 (14 March 2012) Interview with “Anonymous C”, music and media management executive.

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commercial considerations such as fan base preferences and music trends. This apparent inconsistency, however, may also be interpreted as an appreciation of the importance of both ideals, and such objectivity may be predicated on the fact that the participants in this section were neither creators (performing authors), nor executive decision makers (record label executives). 4.4.2

On the Interactions between Record Labels Executives and Performing Authors

With regard to the contributions made by record label executives to the authorial processes of performing authors, all the participating stakeholders who answered this question were of the opinion that in the context of such relationships, it is suitable for record labels to offer guidance to performing authors regarding the lyrics, tune or beats of a song. It was argued that although labels risk the process going wrong in situations where the goals of the performing author and those of the company do not align, new performing authors may require some measure of moulding, as it were.35 It was also argued that for commercial purposes, labels should be able to make contributions to the process of determining what songs are released. Be that as it may, participants stated that performing authors are typically desperate for the platform a record deal can afford, and they noted that recording contracts are often too strict and impenetrable. Participants in this category advised that performing authors must get into the habit of studying their contracts and contributing to negotiation processes. Furthermore, they emphasised the need for performing authors to be more educated about copyright law. 4.4.3

On Copyright Law

Pertaining to copyright and the Nigerian popular music industry, majority of the sample were in favour of maintaining the duration of copyright in musical works at ‘life of the author plus 70 years’, however, they also emphasised the need for the maintenance of a robust public domain. They

35 (4 May 2012) Interview with Honey Onile-Ere, IP Specialist and Former Music Publishing Executive.

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also suggested that if performing authors were properly remunerated, the issue of the duration of copyright may not be contentious for them. Assessing their opinion on the functionality of copyright law for performing authors in the Nigerian popular music industry, 83.3% of the sample cited performing authors’ ignorance of copyright law as the primary problem. They also cited the problems of reliable distribution networks and improperly constituted collecting societies. According to Ruby Gyang, The regulation of distribution is completely lacking in Nigeria and Alaba market is a huge problem. At first, they bootlegged foreign works, now they have become a cartel, and local artistes are unable to get beyond them. Also, proper administration and collection of royalties need to be addressed.36

It appears that these problems may have led to reduced variety in creative works and reduced musical output in the Nigerian popular music industry. A participant asserted as followsThe Nigerian Music Industry has enormous creativity but needs regimentation, professionalism, transparency, variety in terms of products and repertoire, knowledge and respect for its market, and functional collectives. As a developing industry, it can build upon the lapses of the western music industries. Creative potentials for development must be harnessed.37

The next subchapter of this book will compare the findings obtained from performing authors, record label executives and stakeholders in the Nigerian popular music industry. The comparisons will be made in order to identify the level of dependence record labels have on copyright law on the one hand, and the nature and extent of the relationship between performing authors and record label executives on the other hand. The comparisons will establish the precarious position or otherwise of creative autonomy for performing authors in the Nigerian popular music industry, and provide a springboard for further analysis and recommendations made in this book.

36 (13 February 2012) Interview with Ruby Gyang, recording artist. 37 (4 May 2012) Interview with Honey Onile-Ere, op. cit.

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Comparative Observations from Entire Sample 4.5.1

Competing Concerns in Authorial Processes

It was observed that while performing authors are most concerned with self-expression in their careers, they also give a reasonable amount of attention to commercial considerations in the process of authoring musical work. On the other hand, while self-expression initially appeared to be of significant importance for record labels and their executives, upon further examination of the findings in this section, it was apparent that record label executives largely consider financial profit as their primary goal. It was observed that they only prioritise the ideal of connecting with audiences because they consider it as a sure way to achieve their goal of financial profit.38 Furthermore, it was noted that in the selection of performing authors to work with, while record label executives are mostly concerned about finding true musical talent, they are almost equally as concerned about finding performing authors who are ‘unique’.39 This appears to be a commercial concept as its importance to record label executives implies that such ‘uniqueness’ facilitates the promotion of performing authors’ careers and the revenue that may consequently be generated for the labels.40 It was also observed that record labels require performing authors to maintain considerable regard for fan base preferences and music trends when writing songs. In this regard, the stakeholders interviewed appear to have an appreciation of the ideals of both record label executives and performing authors. This suggests that the decision of the priority ideal may need to be made on the basis of consequential reasoning, and this will be discussed in the next chapter.41

38 Supra, Sect. 4.3.1. 39 It was noted that the concept of “uniqueness” was alternatively referred to as “eye

candy”, having the “x-factor”, or having a “promotable image”, supra, Sect. 4.3.2. 40 Infra, Sect. 7.2. 41 Infra, Sect. 5.3.

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Performing authors are mostly concerned about self -expression in their authorship, whereas Record label executives predominantly think of authorship as a means for financial gain.

4.5.2

On Copyright Law

From the foregoing, it is apparent that while performing authors in the Nigerian music industry grapple with copyright-related issues like pursuing outstanding royalties, registering copyright notices and enforcing their moral rights, a significant number of performing authors have had no experience dealing with copyright issues.42 Further, almost half of the sample admitted that they either do not know how copyright works at all, or do not know well enough.43 On the other hand, though record label executives highlighted a need in the Nigerian popular music industry for education on copyright, it was observed that they generally rely on copyright law, carefully drafted contracts and legal advice in the practice of their business locally, and especially internationally.44 It was also noted that almost all of the stakeholders interviewed were concerned about the prevailing ignorance among performing authors as it relates to copyright law.45 It is therefore evident that in the Nigerian popular music industry, performing authors have minimal knowledgeable of copyright law, while record labels rely on their lawyers for carefully drafted contracts that maximally utilise the provisions of the copyright law. Record label executives depend on copyright law, lawyers and contractual security, whereasPerforming authors generally do not know enough about copyright law to be able to utilise it as a bargaining tool.

42 47.6% of performing authors; supra, Sect. 4.2.3. 43 43%; supra, Sect. 4.2.3. 44 Supra, Sect. 4.3.3. 45 83.3%.

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The Decision Maker in Authorial Processes

Finally, it was observed that record label executives who generally have a better appreciation of copyright law than performing authors,46 and whose priority in business is to make money,47 directly influence the creative processes in music authorship within the Nigerian popular music industry. They make suggestions to performing authors regarding the lyrics, style and beats of songs, and they have at different times rejected songs which performing authors have authored and suggested for release. It was also noted that where disagreements arise between record label executives and performing authors over the creative direction of a song, the record labels have the final say. Performing authors confirmed this trend, and they emphasised that the experience of having their songs rejected by their labels is hurtful for them, as the rejected songs have often been songs they personally liked and wished to release. However, stakeholders in the Nigerian music industry consider it reasonable for record label executives to offer creative suggestions to performing authors. Record label executives impose their commercially motivated ideas on the authorial processes of performing authors, whereas Performing authors do not necessarily agree with the reasons for such veto.

4.6

Postscript on Copyright and Contracts

The comparative opinions and experiences of a sample of performing authors, record label executives and stakeholders in the Nigerian music industry have been observed and reported above.48 However, at the end of each interview, participants were asked to revert to the researcher if they had further anecdotal information or experiences about the effects of copyright law on their creative autonomy, particularly as it relates to their interactions with their record labels.49 Accordingly, in July 2013, sixteen months after they were first interviewed, two of the participants 46 Supra, Sect. 4.5.2. 47 Supra, Sect. 4.5.1. 48 Supra, Sect. 4.5. 49 Supra, Sect. 4.2.4.

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granted interviews narrating their experiences with their record labels and their reasons for terminating their recording agreements with their labels. Their concerns will be reported here, as a postscript on contracts. Additionally, the concerns expressed by a Professor of Nigerian copyright law, also interviewed regarding his views on the legal challenges for the Nigerian popular music industry, will be related as a postscript on copyright.50 Some of their comments reflect the central concern of this book,51 and will be narrated verbatim in order to preserve their essence. 4.6.1

On Contracts

4.6.1.1 Jesse Jagz Jesse Jagz was one of the participants who had parted ways with his record label in the period since he was first interviewed for this book.52 Regarding the interactions between record labels and performing authors, he opined as follows-53 Generally, no album is paid for. Artists are not given advances to record with. You have to do it all by yourself and put it out there. And if it does well, then you start getting shows and performing and possibly endorsements. Also, if it does well, this is the money that the record label will now use to shoot a video for the song. This was the route I went down with my first album…. I think it really is the ignorance of the artist that is the basis for this problem. We all know this, but the reality is that in Africa, the artist does not really have a leg to stand on in the bargaining process. If you try to say all this in the negotiations, the label will just tell you that if you’re not going to sign, you should go away. So, most artists will put pen to paper not realizing what they are actually tying themselves into. And at the end of the day, a lot of artists have recently left their labels in Nigeria…[sic] I guess, after a while it gets difficult because the problem is that the labels treat you like a commodity and that is what they want you to be… Even some of the older artists have been swayed by the current trends 50 (11 July 2013) Interview with Bankole Sodipo, op. cit. 51 Supra, Sect. 1.2. 52 (16 February 2012) Interview with Jesse Jagz, Songwriter, Recording and Performing Artist and Music Producer. 53 (10 July 2013) Interview with Jesse Jagz, an independent Songwriter, Recording and Performing Artist and Music Producer.

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and are now making trashy music because of the influence of the internet, and the allure of the way African American music works. So, once you get signed, your label wants you to be that. They just want you to dress well, wear the best clothes, rent the best cars and put them in your music video and give off the image that everything is awesome. It is all about the packaging and the marketing, not about the music.54

He asserted that having now become an independent artist, his considerations in his authorial processes were no longer wholly centred on musical trends or the demands of his fan base. He stated thusFor me, when I really want to write, having gotten used to a writing pattern, and understanding the way my creativity flows, for me it is just purely a lockout. I lock myself away from the public. I haven’t had a phone for a year now. I don’t have a number and I can’t be reached because I think there’s a part of creativity… it’s like saying all knowledge comes from imagination, so I exist in raw imagination. [sic] Everything that has been written has been written and I’m interested in the “new”. So, for me, it’s a very painful process of writing. You argue with yourself, trying to write something and then finding out what you wrote two weeks earlier was obviously better… once you write something, it is what it is. Once it comes out, there’s not much you can change. If you’re going to change it, it means you’ll be changing the whole direction of the work. So, I lock myself in and I refuse to be conscious of trends or even what my fans want to hear. Each time I put out music, I think there’ll be someone that will connect with it and I’m out to get new fans all the time. A former fan may not like what I’m doing now, but someone else will, because the artist’s career is a journey. Therefore, it’s a total lockout process for me, lockout from fans, colleagues, even from the radio. It’s a risk though, because it has happened to some artist that they would come out from lockout sounding 15 years outdated…. when I say lockout, it means that I listen to the oldest music that is still relevant; the music that my uncles told me to listen to when I was eight years old such as Bob Marley.55

He also stated that the considerations that go into the selection of songs to release have changed since he became an independent artist. He had initially tried to make commercial music to satisfy his label, stating thus-

54 (10 July 2013) Interview with Jesse Jagz, op. cit. 55 (10 July 2013) Interview with Jesse Jagz, op. cit.

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When I first got into Chocolate City, I actually knew how I was perceived…. I was perceived as the very creative guy who was not commercial. And I knew it. I knew it. You hear it a lot because as an adult, you pay attention to what’s going on around you. I tried to do things the way they wanted. I tried to make commercial music as creatively as I could. On my first album, many of those songs were not really from my creative core. The songs that really reflected my creative persona such as “Jag of all Trades” were not promoted at all. The songs that were promoted were the songs that the label considered to be commercial and sellable.56

He stated that as an independent artist, he now felt the liberty to make independent decisions on the basis of what he termed as the ‘emotional energy’ present in a songFor me now, it is the energy. The first single I put online from the album was “Redemption song”. It was the last song to be recorded on the album, but when I was done recording the song, I just knew that instead of putting up a statement about my career, anybody that had been watching and who had questions would be able to just listen and know what was going on. So, it is determined by the emotional energy I can pack into the song. This is the way I make decisions, now that I am independent. It was also the way I decided back then when I was under CC, but I guess right now, I have more say over my career. For instance, a lot of the songs that are on my album right now would not have made it onto an album when I was under my former contract because of their content, just because it is music that is hard-working music. A lot of CEOs of record labels are afraid of intelligent music. A lot of business people are lazy, and they don’t want to sign on an artist that would make them work as a company. They would much prefer the easy way of producing easy selling pop music.57

Regarding creative control, he maintained that although his contract stipulated that he would have creative control over the songs he would release, creative control for performing authors in the context of their relationship with record labels is a farce. He argued that having made what they consider to be monetary investments in a performing author’s career, record label executives would not hesitate to make suggestions over how they think a song should sound. Considering the framework of

56 (10 July 2013) Interview with Jesse Jagz, op. cit. 57 (10 July 2013) Interview with Jesse Jagz, op. cit.

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the Nigerian popular music industry, it was his view that the bargaining handicap of performing authors is the reason why they adopt the creative instructions of record label executives. 4.6.1.2 ‘X-Band’ X-band is a Nigerian four-man-band that was considered to be the first of its kind in Nigeria.58 However, within a year after they were first interviewed for this book, the relationship between them and their record label went sour. At a more recent interview, they disclosed that they were in the process of terminating their recording contract, and they spoke painfully about their experience with their label as followsEssentially, we signed the contract because we wanted more exposure for our music. We wanted a bigger platform. But in the course of the relationship, we were not comfortable with the focus that the Label placed on “image”. They seemed to have more concerns with image than with musical content. Another big problem is that they wanted to control our creativity, but had no clear direction as to what they wanted to do. So, they kept sending us back to the studio with our work. At this point, we felt stifled, like they were “dulling us”. They kept delaying our projects as they compared our songs to some commercial ideal that they had for us, even though they could not articulate it. Our first project with them was to release a single. But that single took about 12 months to come out, and we had recorded and re- recorded it at least 12 times. There were 12 versions of the song! All due to their search for some evasive commercial sound. By the time they approved the release of the song, we honestly did not want to hear the song again! We were tired of it. In the course of dilly-dallying, they really could not decide what exactly their problem with each version of the song was. At a point, they got a different studio producer to work on the song with us, yet when that version came out, they said the song still did not work. Naturally, we were quite frustrated, and we gave a sample of the song to other people to listen to, so that we could get their take on it. And they loved it! Yet the Label said, and to quote them, that the song sounded

58 “X-band” is not the recognized name of this group of participants. They were first interviewed for this book on 9 February, 2012, and subsequently interviewed on 10 July, 2013. They requested to remain anonymous, but consented for their information to be used in a non-attributable form. For reference purposes in this book, they shall be referred to as “X-band”.

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like a “piss-take”. Still on the decision of which song to release as our first single with them, they eventually said we should abandon this song (which we had made 12 versions of in 12 months), and go back to a song we had originally suggested to them 10 months earlier! It was altogether too frustrating! At the time we terminated the contract, we had spent one year and seven months with the label, but had not released any new music with them at all. Eventually, at a meeting with the Label, they threatened to drop us. But by this time, we realized that they had not contributed anything to our advancement anyways, so we decided to call their bluff and terminate the agreement. We did not wait for them to carry out their threat, we decided to leave first. We already had a music career and had released albums before we signed with them, and we will continue to make efforts in our career as an independent band.59

4.6.2

On Copyright

Bankole Sodipo, a professor of Nigerian copyright law corroborated the premise of this book with regard to the role of the performing author, asserting that, ‘in Nigeria, the composer and performer of a work is often the same person’.60 He weighed in on the problems for creative autonomy in the Nigerian popular music industry, on the basis of his academic and legal expertise, and asserted that some of the most common disputes in the industry are disputes over the identity of the actual author of a song. He opined that such disputes often feature the followinga. record labels and commissioners of musical work exceeding the scope of their rights to such works; b. record labels cheating artists out of their royalties; c. problematic issues with collecting societies; and d. the infringement of performing authors’ moral rights.61

59 (10 July 2013) Interview with “X -band”, a recording and performing band comprising of songwriters, instrumentalists, performers and producers, each individual performing multiple roles. 60 (11 July 2013) Interview with Bankole Sodipo, op. cit. 61 This narration appears to corroborate the concerns cited by performing authors earlier

in this chapter, supra, Sect. 4.2.3.

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Notwithstanding the weight of these problems, he argued that one of the foundational elements of the problems for performing authors is their attitude to legal representation in conducting their business affairsAnother major problem is that artists are mostly unwilling to invest in obtaining legal advice. They hesitate to sign retainerships and when they do, they do not honour them. There is therefore a lot of distrust in the system. In ancient Nigerian pre-copyright times, composition and performance of musical works were undertaken by specific individuals who belonged to guilds or cults if you like. They functioned almost like exclusive, secret sects, and it appears that some of the relics of that era are still present in the attitudes of many Nigerian musicians today…. It should be the norm for artists to retain the services of lawyers and accountants for the furtherance of their careers, but this is not the case in Nigeria. As long as artists do not value the services of such professionals, the industry may continue to be stunted.62

Regarding the interplay between record labels and performing authors in the decision-making over which songs to release, he alluded to the divergent goals of either side, and noted thusThe difficulty for recording companies is that they are out to make money and not to enable artists fulfil their dreams. There is therefore an inherent conflict of interest in such relationships, and where the record label is the financial investor or funder of an artist’s musical project, their music may inevitably be tailored towards maximising profits.63

As it relates to copyright contracts, he argued that the trend of record labels requiring the assignment of performing authors’ copyrights without specific monetary consideration beyond royalty sharing formulas can only be addressed by a revision of copyright law. He stated thusIn this regard, the only way the copyright of performing authors can be protected is if the law is revised. Labels typically require assignment of artist’s copyright and this is the standard in the industry. It will not change

62 (11 July 2013) Interview with Bankole Sodipo, op. cit.; in this regard, he maintained that majority of copyright related disputes in the music industry are not referred to the courts; infra, Sect. 5.2. 63 (11 July 2013) Interview with Bankole Sodipo, op. cit.

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by the intervention of a single activist. Artists have to present their arguments as a union. Only a union can fight this problem. Even if the law were to require specific consideration, people may still go on to contract outside the specific provisions of the law. Therefore, at the most basic level, the law needs to be revised.64

4.7

Conclusion

This chapter set out to empirically analyse the status of performing authors’ creative autonomy within the context of their relationships with record labels, and it was observed that the expressed goal of record labels is financial in nature. Although performing authors are primarily concerned with self-expression in their authorship, they are commercially and stylistically defined when they sign recording contracts,65 and this may be more onerous for their creative autonomy because of their weaker bargaining positions, and a lack of legal advice on copyright issues. Furthermore, the effects of this situation were noted in the average ratio of songs the participating performing authors had written or recorded in comparison to what they had commercially released, which stood at 4:1.66 Therefore, as has been noted earlier in this chapter, it may be surmised that the Nigerian popular music industry utilises a mere 20% of its discovered creative resources.67 Moreover, this figure does not reflect the presumably larger numbers of undiscovered and unpublished authors. Finally, it was observed that while the contractual imbalances in performing authors’ relationships with their record labels may be more glaring, performing authors have minimal knowledge of copyright law and the challenges that may be posed by the law are less ostensible to them. These observations reflect the precarious state of creative autonomy 64 Ibid. 65 This was succinctly expressed by one of the record label executives interviewed, and this implies that labels may not permit performing authors to release material to the public which the label considers as being outside their commercial definition of the performing author, supra, Sect. 4.3. 66 Supra, Sect. 4.2.1. 67 Supra, Sect. 4.2.1; this figure is in agreement with the argument reported by Burnett

that ‘in most industries there are always more goods available for possible production and marketing than are actually manufactured, promoted and consumed’, Burnett, R, The Global Jukebox; the International Music Industry, op. cit., p 72.

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for performing authors, and the goal of cultural variety in the Nigerian popular music industry. Having observed the empirical status of creative autonomy, the next chapter will consider the theoretical foundation for the protection of creative autonomy, which is visible in copyright jurisprudence and justification theories.

CHAPTER 5

Justifying Creative Autonomy within Copyright Discourse

5.1

Introduction

The preceding chapter was devoted to collating and analysing empirical data from the Nigerian popular music industry, and it showed a dismal outlook for performing authors seeking to exercise creative autonomy. The information collected also highlighted the practical ideals that creative autonomy as a concept entails, which were surmised in the definition of creative autonomy as ‘authors’ absence of, or ability to grapple with, external pressure to reflect commercial trends in authorship’.1 This chapter will explore the tacit foundation for the concept of creative autonomy within copyright jurisprudence and will make a case for its express recognition as a canonical element in copyright justification theory.2 Creative autonomy may also be construed as an element of freedom of expression with regard to creative endeavour. “Freedom of expression” is a fundamental part of human rights, and legal scholars have typically avoided overtly linking intellectual property issues with human rights.

1 Supra, Sect. 4.2.5. 2 Several sections of this chapter were published as an article with the Queen Mary

Journal of Intellectual Property, citation as follows, Gani, MW, “Copyright Theory and a Justificatory Framework for Creative Autonomy in Cultural Industries” (2016) 6 (2) Queen Mary Journal of Intellectual Property, pp 154–174.

© The Author(s) 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5_5

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However, creative autonomy as a concept, necessitates the exploration of both copyright theories and human rights theories. This chapter will argue that creative autonomy is theoretically recognised in substantive human rights law and international convention, and it will show how the notion of creative autonomy is tacitly justified in deontological theories on copyright law. Finally, the chapter will then argue for the express inclusion of creative autonomy in the consequentialist computation of copyright efficiency.

5.2 Canonical Articulations of Creative Autonomy within Human Rights and International Conventions Discourse on the intersections between human rights and intellectual property (which includes copyright law) has become more common with the inclusion of aspects of intellectual property within human rights instruments and vice versa.3 While it is established that human rights supersede intellectual property rights in cases or treaties where there is a material conflict between both,4 in such conflicts which pertain to copyrights, courts often seem reluctant to reflect the primacy of free speech.5 However, it is instructive to note that both aspects of law appear to share a common foundational concern in relation to the subject of creative autonomy, and these intersections provide a useful platform for identifying and articulating the case for creative autonomy. They are highlighted in this subchapter. 5.2.1

Freedom of Expression within Human Rights Law

Human rights have been described as a class of rights which entails ‘universal respect for, and observance of… fundamental freedoms for all

3 Yu, PK, “Reconceptualising Intellectual Property Interests in a Human Rights Frame-

work” (2007) 40 UC Davis Law Review, pp 1039–1149, p 1042; Helfer, LR, “Human Rights and Intellectual Property: Conflict or Coexistence?” (2003) 5 (1) Minnesota Intellectual Property Review, pp 47–62, p 47. 4 Ibid., p 48. 5 Gordon, W, “A Property Right in Self-Expression: Equality and Individualism in the

Natural Law of Intellectual Property”, op. cit., p 1537.

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without discrimination as to race, sex, language or religion’.6 It entails such fundamental ideals as the ‘right to life, liberty and human dignity’,7 and includes freedom of expression as well as freedom to choose the method of expression.8 This is in alignment with the provision of the Universal Declaration of Human Rights which states thusEveryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.9

Despite the wide ambit of freedom of expression, there are certain circumstances where it may come into conflict with intellectual property rights. This conflict has played out in some European cases, and the decisions of the courts, while instructive for the framework of freedom of expression, are useful for appropriately conceptualising creative autonomy. In the Plesner case,10 the Court noted that jurisprudence from the European Court of Human Rights (ECHR) had maintained the importance of freedom of expression in democratic societies.11 While the Court acknowledged the need to strike a balance between freedom of expression and property rights,12 it also reiterated the assertion that ‘art could offend, shock or disturb’.13 Taken literally, this judicial recognition that art could evoke varied reactions, coupled with the sacrosanct position of freedom of expression, infers the acknowledgement of creative autonomy

6 Nordenfelt, J, “Human Rights—What They Are and What They Are Not” (1987) 56 Nordic Journal of International Law, pp 3–8, p 3. 7 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 215. 8 ‘Everyone has the right to freedom of expression. This right shall include freedom to

hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’, article 10 of the UK’s Human Rights Act 1998. 9 Article 19, Universal Declaration of Human Rights (UDHR) 1948. 10 Plesner Joensen v Louis Vuitton Malletier SA (2011) ECDR 14; Plesner’s defence

relied on article 10 European Convention on Human Rights 1950. 11 Appleby v UK (2003) 37 EHRR 38; Vereinigung Bildender Kunstler v Austria (2007) ECDR 7; Steel v UK (2005) EMLR 15. 12 Appleby v UK, op. cit. 13 Vereinigung Bildender Kunstler v Austria, op. cit.

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within human rights jurisprudence. It implies the freedom to create art according to the artist’s desired outcome. Accordingly, the definition of creative autonomy proffered in this book,14 reflects a fundamental acknowledgement of the intrinsic autonomy of individuals engaged in creative activity. 5.2.2

The Right to Moral and Material Interests from Authorship

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is one of three instruments which make up the International Bill of Human Rights (IBHR),15 and article 15 (1) of the ICESCR recognises the right of individuals to participate in the following activitiesa. to take part in cultural life; b. to enjoy the benefits of scientific progress and its applications; and c. to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.16 Some may imagine that the recognition of the right to ‘benefit from the protection of the moral and material interests…of which [one] is the author’,17 within the IBHR, ipso facto means that the right to hold intellectual property enjoys the sacrosanct level of human rights’ importance.18 However, the United Nations Committee on Economic, Social and Cultural Rights, in its comment on article 15 (1) (c) of the ICESCR, declared that ‘it is… important not to equate intellectual property rights

14 This book defines creative autonomy as “the absence of, or the ability to grapple with external pressure to reflect commercial trends in authorship”, supra Sect. 4.2.5. 15 International Covenant on Economic, Social and Cultural Rights 1976 (ICESCR); International Covenant on Civil and Political Rights (ICCPR) 1976; and UDHR 1948. 16 Article 15 (1) (a) and (b) ICESCR 1976. 17 Article 15 (1) (c), ibid. 18 Shaver, L and Sganga, C, “The Right to Take Part in Cultural Life: On Copyright

and Human Rights” (2009) 27 (4) Wisconsin International Law Journal, pp 637–662, p 642.

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with the human right recognized in article 15, paragraph 1 (c)’.19 It elucidated further on the provision by emphasising that, unlike intellectual property laws by which ownership of rights is transmissible,20 the rights in this provision exist solely for the author as the creator of the work.21 It has thus been asserted that this provision ‘cannot be interpreted as…elevating intellectual property to the human rights stratosphere’.22 However, portions in the General Comment appear to relate to creative autonomy, as it states thusTheir intention was to proclaim the intrinsically personal character of every creation of the human mind and the ensuing durable link between creators and their creations.23

From the acknowledgement given by the ICESCR to authors’ rights rather than the rights of assignees,24 and from the drafters’ intentions portrayed in the General Comment, it is clear that the drafters of the Covenant presupposed an essential premium on the autonomous expressions of the human mind. This premium bears marked similarity to civil law concepts of moral rights, which are generally perpetual and inalienable.25 However, moral rights may be seen as one of the results of authorship,26 whereas, the Comment on article 15 (1) (c) of the 19 Paragraph 3, United Nations Economic and Social Council, General Comment No 17

(2005), 35th Session, Geneva, 7–25 November 2005, available at http://www.bayefsky. com/general/cescr_gen_comment_17_2005.pdf (accessed 25 February 2020); General comments may be used by treaty bodies to elucidate on its provisions, http://www. bayefsky.com/getfile.php/id/48614227/misc/general (25 February 2020). 20 Paragraph 2, United Nations Economic and Social Council, General comment No 17, op. cit. 21 The General Comment takes into account the rights of individual authors as well as joint authors, paragraph 7, ibid. 22 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 218. 23 Paragraph 12, United Nations Economic and Social Council, General Comment No

17, op. cit. 24 Paragraph 2, ibid. 25 Rigamonti, CP, “Deconstructing Moral Rights” (2006) 47 (2) Harvard International

Law Journal, pp 353–412, p 359; Rahmatian, A, Copyright and Creativity: The Making of Property Rights in Creative Works (Edward Elgar, Cheltenham and Northampton, 2011), p 47. 26 Infra, Sect. 5.3.4; it is an essential aspect of civil law systems such as France and Germany, Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 89; it is also present in common law copyright systems, but tends to require assertion

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ICESCR redirects the interpreter to the roots of the activity of authorship (that is, the nature of the activity from which copyright would occur) by asserting, the ‘…personal character of every creation of the human mind…’.27 This clause in the Comment compels intellectual property discourse to consider the unencumbered, autonomous individual author as the primary focus of creative activity, and thus establishes the primacy of creative autonomy. 5.2.3

The Preservation of Autonomy and Diversity in Cultural Expression

As the name of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) implies, the first objective cited by the Convention is the protection and promotion of the diversity of cultural expressions.28 The Convention defines cultural expression as ‘those expressions that result from the creativity of individuals, groups and societies, and that have cultural content’.29 Furthermore, it holds that cultural diversity is impossible without the safeguarding of cultural expression.30 The Convention’s guiding principles appear to reflect the importance of protecting authorial autonomy and independence, and this may be noted in the provision thatCultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed.31 in order to be enjoyed, section 77 CDPA 1988 (UK); section 14.1–14.2 Copyright Act 1985 (Canada); in Australia, only individuals, as opposed to corporate bodies, are vested with moral rights, section 190, Part IX Copyright Act 1968 (Australia); Goldstein, P and Hugenholtz, B, International Copyright: Principles, Law and Practice (3rd ed, Oxford University Press, Oxford and New York, et al, 2013), p 358. 27 Paragraph 12, United Nations Economic and Social Council, General Comment No 17, op. cit. 28 Article 1 (a) the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005, hereafter referred to as “the UNESCO Convention”. 29 Article 4 (3), ibid. 30 Article 2 (1), ibid. 31 Article 2 (1), ibid.

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With regard to the responsibility of member states and the protection of creative autonomy, the Convention emphasises the nexus between culture and development,32 and it provides that without prejudice to the provisions of Articles 5 and 6, a Party may determine the existence of special situations where cultural expressions on its territory are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.33

Article 8 further provides that in such situations, a member state of the Convention may employ all suitable measures ‘to protect and preserve cultural expressions…in a manner consistent with the provisions of this Convention’.34 It therefore appears imperative for socio-economic development that member states identify the status of creative autonomy in their creative industries, and where necessary, implement measures to safeguard it. From the data analysed in Chapter 4 of this book, the status quo suggests that it is imperative for Nigeria to take legislative and practical administrative steps to safeguard creative autonomy of performing authors in particular.35 The import of this Convention is that diversity in cultural expression cannot be guaranteed without the protection of creative autonomy.

5.3 Justification for Creative Autonomy in Deontological Theories Relating the definition derived from Sternberg and Lubart’s investment theory on creativity,36 to the notions of freedom of expression discussed above,37 creative autonomy may be conceived of as an intrinsic element of individuals’ freedom of expression within the context of culture and

32 Article 1 (f), ibid. 33 Article 8 (1), ibid. 34 Article 8 (2), ibid. 35 Supra, Sect. 4.5.3. 36 Supra, Sect. 1.7.2; Sternberg, RJ and Lubart, TI, “The Concept of Creativity:

Prospects and Paradigms”, in Sternberg, RJ (ed), Handbook of Creativity, op. cit., p 10. 37 Supra, Sect. 5.2.

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creative activity. Moreover, justification for the concept appears to be established in deontological theories on copyright law. In general terms, deontological theories on copyright law affirm the justification of rights by virtue of moral claims,38 propounded on the basis of natural rights, human rights or as a matter of duty.39 Such theories hold that certain rights are absolute,40 and this is in contrast to consequentialist theories which shall be discussed later in this chapter.41 References to autonomy in creative activity appear to be foundational in the deontological theories on property rights propounded by Locke, Kant and Hegel. Their theories are also important for consideration as they have been described as ‘some of the most important political philosophers on property and copyright’.42 This subchapter thus considers the arguments of these three philosophers, in order to succinctly articulate their notions of creative autonomy. On the basis of the analysis made, a more nuanced framework for creative autonomy within copyright theory will be highlighted. 5.3.1

Justifying Creative Autonomy in Lockean Theory

Locke’s theory on property rights has been analysed and reiterated in scholarly works.43 It has been described as one of the most influential

38 Veitch, S, et al, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London and New York, 2007), p 27. 39 Johnson, RN, “Deontological Ethics”, Supplement to the Encyclopaedia of Philosophy, Macmillan, available at http://web.missouri.edu/~johnsonrn/deon.html (accessed 15 July 2011); Dutfield, G and Suthersanen, U, Global Intellectual Property Law (Edward Elgar, Cheltenham and Northampton, 2008), p 52. 40 Zalta, EN (ed), “The Stanford Encyclopaedia of Philosophy”, available at http:// plato.stanford.edu/archives/fall2008/entries/ethics-deontological/ (accessed 25 February 2020); Gordon, W, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property”, op. cit., p 1539. 41 Infra, Sect. 5.4. 42 Rahmatian, A, Copyright and Creativity: the Making of Property Rights in Creative

Works, op. cit., p 69. 43 Rose, M, Authors and Owners: The Invention of Copyright (Harvard University Press, Cambridge, 1993), p 5; Rahmatian, A, Copyright and Creativity: The Making of Property Rights in Creative Works, op. cit., p 69; Hughes, J, “The Philosophy of Intellectual Property” (1988) 77 (2) Georgetown Law Review, pp 287–366, p 296.

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natural law theories canvassed for the justification of property rights.44 Even though some may argue about its relevance to intellectual property rights, such arguments have been rebutted by the assertion that several parallels make Locke’s theory valid for justifying intellectual property rights.45 For instance, Locke’s state of nature may be analogous to the ‘public domain’, and copyright’s requirement of originality of expression corresponds to Locke’s theory of labour.46 The theory begins with the assertion that though God has given all things in their natural state to humankind in common, these things are not capable of being used without being appropriated in some way or manner.47 According to Locke’s theory, the premise of property rights starts with one’s own person, and he asserts that since people have exclusive rights in themselves and in the labour of their bodies, attaching their personal labour to things existing in common would naturally result in private property.48 This attachment of personal effort distinguishes such items from other items held in common to which no private labour has been attached, thus excluding the rest of society from exercising any rights to the items in question.49 The premise of personal freedom in Locke’s argument already shows theoretical justification for creative autonomy. This is so because, if the

44 Damstedt, BG, “Limiting Locke: A Natural Law Justification for the Fair Use Doctrine” (2003) 112 (5) The Yale Law Journal, pp 1179–1222, p 1179; be that as it may, there are aspects of Locke’s argument, particularly his caveats, that appear to have consequentialist bearings, and which have been cited as the foundation for the US constitutional position on intellectual property, Hughes, J, “The Philosophy of Intellectual Property”, op. cit., p 288; article 1, section 8, clause 8, US Constitution. 45 Merges, RP, Justifying Intellectual Property (Harvard University Press, Cambridge et al, 2011), p 32. 46 Lessig, L, “Recrafting a Public Domain” (2006) 18 Yale Law Journal of Law and the Humanities, pp 56–83, p 57; Davis, J, Intellectual Property Law (3rd ed, Oxford University Press, New York, 2008), p 6. 47 Locke, J, Two Treatises of Government; in the Former, the False Principles and Foun-

dation of Sir Robert Filmer, and His Followers are Detected and Overthrown; the Latter is an Essay Concerning the True Original, Extent and End of Civil Government (Lawbook Exchange ed, The Lawbook Exchange Ltd, Clark, NJ, 2010), p 185. 48 Locke, J, Two Treatises of Government, op. cit., p 185; Rose, M, Authors and Owners: The Invention of Copyright, op. cit., p 5. 49 Locke, J, Two Treatises of Government, op. cit., p 186.

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attachment of personal labour to property held in common is the prerogative of each individual, it follows that the method or means of attaching personal labour is also at the individual’s discretion, eliciting the notion of creative autonomy. Moreover, Locke issues two caveats that may further justify creative autonomy, particularly in relation to the protection of cultural diversity. Firstly, he mentions that the resources remaining in the ‘commons’ after appropriation must be sufficient in quality and quantity for others in society.50 The second concern is that people should not appropriate more resources than they are able to use, as this would create wastage.51 With regard to Locke’s caveat about leaving resources in sufficient quantity and quality for others, it may be surmised that discretionary methods of attaching personal labour to limited resources held in common, may expand the possibilities of diversified exploitation for such resources, thus satisfying the concerns of the caveat. Indeed, discretionary attachment of personal labour appears to be the foundational ideology for free markets as well as property. With further regard to creative autonomy, a note of caution has been emphasised to the effect that Locke’s theory refers to the ‘application’ of labour to things, rather than the ‘mixing’ of labour with things.52 This is because whereas the word ‘mixing’ shifts attention from the labour to the end product and questions the degree of labour added,53 Locke’s focus appears to have been on the natural exclusive ownership of the labour itself and its dynamic discretion in application.54 This again suggests individual autonomy in the extent of labour attached to things, and illustrates the working definition for creative autonomy furnished earlier in this book as the absence of, or the ability to grapple with external pressure

50 Ibid., p 189. 51 Ibid., p 188. 52 Merges, RP, Justifying Intellectual Property, op. cit., p 43. 53 Gosseries, A, et al (eds), Intellectual Property and Theories of Justice (Palgrave

Macmillan, Chippenham et al, 2008), p 37; here, criticism of Locke has been stated thus: ‘even if labour can be owned and mixed in objects, why would that be a reason for a person to gain ownership over the un-owned resource rather than to lose her ownership over her labour?’; however this argument appears to omit Locke’s assertion that God had richly given things to men to “enjoy”, and that appropriation is essentially for the purpose of use. 54 Merges, RP, Justifying Intellectual Property, op. cit., p 15 and p 43.

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to reflect commercial trends in authorship.55 Accordingly, Locke’s theory justifies creative autonomy as unfettered authorial processes, requisite for the maintenance of diverse cultural works. 5.3.2

The Kantian Concept of Creative Autonomy

Kant’s essay against the practice of counterfeiting books appears to lean considerably in support of creative autonomy for authors, and may be considered for its theoretic value. Kant’s theories have been considered as some of the most influential in deontological philosophy, as he argues on the foundation of reason, which can be ‘discovered through rational reflection’.56 Even though Kant’s theory on authorship is made from the perspective of books, this subchapter will show how his arguments may apply to authors of musical works, with particular regard for their creative autonomy. According to the theory, books are at the same time ‘the manifestation of authorial personality and speech’, as well as physical items.57 Kant thus argues that a book may be owned in two senses, firstly as a medium of expression for one’s thoughts and secondly as a ‘mute instrument’.58 Consequently, while the owner of the mute instrument may do with the physical copy whatever they please, including burning it in the presence of the author, they can no more appropriate it than they can appropriate the author’s thoughts.59 According to this theory, the rights in a person’s writings are as sacred as rights to that person’s thoughts and speech, which are inalienable, and it is on this basis that Kant argues that publishers must always act in the interest of authors.60

55 Supra, Sect. 4.2.5. 56 “Kant and Deontology” (2007), available at http://py111.wordpress.com/2007/

10/26/kant-and-deontology/ (accessed 25 February 2020). 57 Kant, I, “Of the Injustice of Counterfeiting Books” (1785), available at http:// www.hkbu.edu.hk/~ppp/fne/essay3.html (accessed 25 February 2020); Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 56; Frith, S and Marshall L (eds), Music and Copyright (2nd ed, Edinburgh University Press, Edinburgh, 2004), p 31. 58 Kant, I, “Of the Injustice of Counterfeiting Books”, op. cit. 59 Ibid. 60 Ibid.

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The theory argues that contractual dealings between authors and publishers are merely analogous to the relationship between a principal and a middle man or an agent; and that the chain of authority cannot be altered because without the author, the role of publisher would not exist.61 It has therefore been argued that from a Kantian perspective, copyright is justified naturally because individuals have inherent rights to their personality and self-expression.62 More specifically, it has been asserted that Kant’s goal does not appear to be the justification of copyright on the basis of idealised creative personalities, but on the expression of personal thought.63 This proposition negates the romantic notion of authors by which autonomous creative activity may erroneously be perceived as the exclusive preserve of distinct few. Kant’s model canonises the concept of creative autonomy by considering the author as the principal figure in the commercial relationship with the publisher.64 Accordingly, it seems contrary to Kantian thinking, and a reversal of fundamental roles, for an author to take creative instructions from a publisher, except perhaps under a contract of employment. The theory presupposes the autonomy of individuals to express their thoughts as they please, and to choose the agent (publisher or producer) through whom they wish to disseminate such thoughts. Kant asserts as follows, But to let anyone speak publicly, to make public his speech as such, that means to speak in his name, and, as it were, to say to the public: ‘Through me, a writer literally lets you in on this or that…, teaches [you,]’ etc.

61 Ibid.; on the basis of the principal- agent relationship, therefore, since the author’s express consent for publication does not alter his property rights in the book, presumed consent by unauthorised copyists can in no way negate the author’s rights to the book and to the proceeds from them. 62 Frith, S and Marshall, L, Music and Copyright, op. cit., p 33; Dames, KM, “Intellectual Property, Copyright’s Purpose and Principal Justification” (2010) 27 (9) Information Today, pp 18–19, p 18. 63 Treiger-Bar-Am, K, “Kant on Copyright: Rights of Transformative Authorship”, available at http://vipo-online.org/wp-content/uploads/2011/10/kant-on-copyright.pdf, p 1067 (accessed 20 July 2011). 64 Treiger-Bar-Am, K, “Kant on Copyright: Rights of Transformative Authorship”, op.cit., p 1070.

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I answer for nothing, not even for the liberty which he takes to speak publicly through me; I am but the mediator of its coming to you…65

Indeed, as Kant asserts, the publisher is not responsible for anything in the contents of an author’s ‘speech’,66 nor is the publisher, by inference, entitled to influence or dictate the manner of the author’s ‘speech’. Thus, Kantian thought reflects creative autonomy as the fundamental, unqualified preserve of authors, regardless of economic consequence. 5.3.3

Hegel on Creative Autonomy

Hegel is noted to have critically studied Kantian philosophy.67 This may account for the similarity his theory bears to Kantian thought on the innate freedom of individuals to self-determination and to hold inalienable rights over their thoughts and their authorial works.68 Hegel’s theory argues that property rights are an expression of individuals’ freedoms, and so he argues that even if the ideas in a book are available to the public by the sale of the book, the expression of the ideas therein can never be separated from the author’s person.69 In arriving at this conclusion, Hegel’s first premise is the mind, which for him, originates with the will.70 In what he refers to as the ‘finitude or particularization of the ego’, he asserts that the will is capable of differentiation, determination and applying itself to external objects as well as to other concepts in the mind.71 Thus, he justifies property rights by

65 Kant, I, “Of the Injustice of Counterfeiting Books”, op. cit., par 18–19. 66 Ibid. 67 Henrich, D, Between Kant and Hegel: Lectures on German Idealism (Harvard University Press, Cambridge, 2003), p 302. 68 Netanel, N, “Copyright Alienability Restrictions and the Enhancement of Author Autonomy: a Normative Evaluation” (1993) 24 (2) Rutgers Law Journal, pp 347–442, p 359. 69 Frith, S and Marshall, L, op. cit., p 32. 70 Hegel, GWF, Philosophy of Right (Translated with notes by TM Knox, Oxford

University Press, Oxford, 1942), par 4. 71 Ibid., par 6.

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asserting that where the will is directed inward, it is ‘the process of translating the subjective purpose into objectivity through the use of its own activity and some external means’; and ‘once the mind has developed its potentialities into actuality, its determinate character is true and simply its own’.72 The objective products of inwardly directed self-determination, prima facie, appear to be referring to real property as well as intellectual property. Accordingly, private property may be seen as a natural occurrence, and attempts to analyse it or justify it have been described as simply being assessments of the rationale behind its existence; evaluative attempts as opposed to prescriptive efforts.73 Hegel argues that property rights in a thing are established by taking possession of a thing through occupancy, forming the thing, or use; all of which are ways of stamping one’s will in the thing.74 Hegel’s concept of formation is akin to creativity, and to Locke’s concept of labour,75 and he asserts that formation creates grounds for property rights in the thing which has been formed, in a way that seizure and marking cannot. Arguments justifying intellectual property rights have been thus made on the basis of Hegel’s notion of formation.76 His definition of intellectual goods has been described as ‘[a person’s] own private personality and the universal essence of [their] self-consciousness’.77 For him, such rights are inalienable and imprescriptible, because only property rights in external things may be alienated or abandoned, and truly cease to be one’s own.78

72 Ibid., par 8. 73 Waldron, J, The Right to Private Property (Clarendon Press, Oxford, 1988), p 345. 74 Ibid., par 54. 75 Supra, Sect. 5.3.1. 76 Frith, S and Marshall, L, Music and Copyright, op. cit., p 32. 77 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 58. 78 Hegel, GWF, Philosophy of Right, op. cit., par 65 and par 66.

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In relation to the central concern of this book, Hegel’s notions of the fundamental freedom of the will to self-determine,79 and its ability to appropriate by formation,80 appear to translate directly to the notion of creative autonomy. His argument is presented in language that reiterates the primacy of the human right to freedom of expression, already elaborated earlier in this chapter.81 Therefore, to relate his argument to the working definition for creative autonomy in this book,82 Hegel seems to suggest that authorship involves the freedom of the will to explore and articulate concepts without external pressure. The Hegelian foundation thus justifies the position of creative autonomy as a vestige of freedom of expression. 5.3.4

Moral Rights as Distinct from Creative Autonomy

The analysis in this chapter has shown that creative autonomy can be abstracted from the theories of Kant and Hegel. In addition, it may be argued that the notion of moral rights as inalienable, imprescriptible rights attached to the person of an author, were birthed or nurtured by the theories of philosophers like Kant and Hegel. However, despite the fact that moral rights and creative autonomy can both be justified on the basis of Kantian and Hegelian philosophies, it is important to note that moral rights regimes do not equate to normative recognition for creative autonomy, which is the central concern of this book. The distinctions between both concepts will be discussed in this subchapter. This subchapter does not conduct an in-depth analysis of moral rights,83 rather, it highlights the ways in which it does not equate to

79 Ibid., par 7. 80 Ibid., par 54. 81 Supra, Sect. 5.2. 82 Supra, Sect. 4.2.5. 83 Moral rights are discussed further, infra, Sect. 6.4.

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the guarantee of creative autonomy for performing authors. This distinction lends further credence to the necessity for specific legislative and normative attention to creative autonomy.84 Moral rights have been identified as foundational in the copyright jurisprudence of civil law countries,85 and this position may be reflected in the French approach to droit d’auteur and the German approach to urheberrecht, as rights inherently connected to authorship.86 In these systems, the rights of the author, as opposed to their subsequent assignees, are at the heart of the copyright argument.87 However moral rights are also reflected in the copyright laws of some common law countries.88 These rights are distinct from economic rights, as they are generally not assignable and may exist even after the copyright in a work has been assigned.89 Amendments to the Berne Convention provide international recognition for the right of attribution, which is the right to be identified as the author of a work, and the right of integrity, in which case the author may object to the alteration or mutilation of his work.90 A comparative 84 Infra, Sect. 9.3. 85 Rigamonti, CP, “Deconstructing Moral Rights” (2006) 47 (2) Harvard International

Law Journal, pp 353–412, p 359; Waelde, C and De Souza, L, “Moral Rights and the Internet: Squaring the Circle”, op. cit., p 266; Rahmatian, A, Copyright and Creativity: The Making of Property Rights in Creative Works, op. cit., p 47. 86 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 89; the French concept of droit d’auteur is based on an ‘individual’s spiritual creation’, Davies, G and Rauscher auf Weeg, HH, op. cit., p 10. 87 Dames, KM, op. cit., p 18. 88 It is evident in the copyright laws of the UK, Canada and Australia; section 77

CDPA 1988 (UK); section 14.1–14.2 Copyright Act 1985 (Canada); in Australia only individuals, as opposed to corporate bodies, are vested with moral rights, section 190, Part IX Copyright Act 1968 (Australia); Goldstein, P and Hugenholtz, B, International Copyright: Principles, Law and Practice (3rd ed, Oxford University Press, Oxford, New York, et al, 2013), p 358. 89 Supnik, P and Faulder, S (eds), op. cit., p 183; Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 89; Article 6 bis (1) Berne Convention 1886. 90 Article 6 bis Berne Convention 1886; moral rights were added to the Berne Convention during the 1928 Rome revision and it has been argued that this served to shift the focus of copyright law back to the role of the author, Vetrone, AV, The Legal and Moral

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Table 5.1 Alienability of moral rights across some jurisdictions Alienability of moral rights across some jurisdictions

Moral rights

Nigeria, Copyright Act 2004

‘Perpetual, inalienable, imprescriptible’; right to claim attribution and right of integrity, s 12. Specific reference to waiver is absent from the Act Can be waived, s 87; attribution, s 77; false attribution, s 84; integrity, s 80 Can be waived, s 106A (e) (1); attribution and integrity only available for authors of works of visual art, s 106A (a) Cannot be waiveda ; publication, art 12; attribution, art 13; integrity, art 14 Cannot be waived, art L 121-1; rights of attribution and integrity, art L 121-1; disclosure, art L 121-2; withdrawal, art L 121-4 Art 9 (1) TRIPS, moral rights under art 6bis Berne are optional for member states of TRIPS

UK, CDPA 1988

US, Copyright Act 1976

Germany, (UrhG) 1965 (amended 1998)

France, Intellectual Property Code 1992

TRIPS Agreement 1994, and Berne Convention 1886

a Rigamonti, CP, “Deconstructing Moral Rights” (2006) 47 (2) Harvard International Law Journal,

pp 353–412, p 361

depiction of the alienability of moral rights in different jurisdictions is represented below (Table 5.1). Although moral rights in common law systems do not generally carry the same weight as they do in civil law countries,91 Nigeria’s legal system

Rights of all Artists, op. cit., pp 21–22; two further moral rights exist in French law which are the right to disclose a work and the right to recall a work from being publicly displayed, Dutfield, G, and Suthersanen, U, Global Intellectual Property Law, op. cit., p 90; Schulenberg, R, op. cit., p 417; Hansmann, H and Santilli, M, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis”, op. cit., p 96. 91 Nigerian copyright law is historically derived from British copyright law, which provides that moral rights shall exist in a work for the duration of copyright subsistence in that work, section 86 CDPA 1988 (UK).

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which is based on common law,92 adheres to the inalienability and perpetuity of these rights as propounded by the civil law concept.93 This may be due to the roles played by creative individuals and organisations in the lobbying that led to the enactment of the 1988 Act, currently in operation.94 The Act recognises the right of attribution,95 and the right of integrity.96 With regard to comparing moral rights and creative autonomy, the moral right of integrity has been described in the Berne Convention as the right of the author to ‘…object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to [his] honour or reputation’.97 From this definition, the similarity to the notion of creative autonomy may be noted

92 It appears that moral rights may not be an inherent feature of common law copyright, however, principles similar to moral rights may be found in common law torts and contracts such as passing off, Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 138; regarding the adoption of moral rights in the US, for instance, ‘Congress stated that then- existing federal and state legislation and common law protections in the United States already offered a “rough equivalence” to the protection of article 6 bis through a patchwork of unfair competition, copyright, contract, defamation and privacy law’, Davies G, and Garnett, K, Moral Rights (Sweet & Maxwell, London, 2010), p 858; Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 63; Rigamonti, CP, “Deconstructing Moral Rights”, op. cit., p 353; Waelde, C and De Souza, L, “Moral Rights and the Internet: Squaring the Circle”, op. cit., p 266; moral rights may not have enjoyed simultaneous international application as the US did not join the Berne Convention until 1988 in opposition to the provision on moral rights in article 6 bis. Thus, moral rights for authors in the US appear to be determined by the laws at state level, except for the Visual Artists Rights Act (VARA) of 1990, a federal statute that recognizes the moral rights of attribution and integrity for visual artists; sections 101, 102, 106(a), 107, 601, VARA 1990; Hansmann, H and Santilli, M, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis”, op. cit., p 97. 93 In departure from common law traditions, moral rights under Nigerian copyright law exist in perpetuity, sections 12 (2) Copyright Act 2004 (Nigeria). 94 Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 63; Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 139. 95 Section 12 (1) (a) Copyright Act 2004 (Nigeria). 96 Section 12 (1) (b) Copyright Act 2004 (Nigeria). 97 Article 6 bis (1) Berne Convention 1886.

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in the way that both concepts maintain their arguments from the perspective of the author’s personality.98 However, the differences between both notions are important to note. Firstly, while moral rights are based on personality rights and in certain cases may have undertones of an economic nature,99 the arguments for creative autonomy, though originating with authorial personality, may be deemed essentially consequentialist. This is so because creative autonomy implies that, since it is impossible to accurately predict the commercial success of any authored work, influencing the authorial process or restricting publication may affect cultural diversity, hinder economic opportunities, and stifle future authorship.100 Secondly, despite their apparent similarity, moral rights occur after a work has been authored. The rights, like economic rights, are vested on the basis of expressed authorship. On the other hand, creative autonomy is a concept, the fragility of which may be evident before the creation of a work, in the interaction between authors and their publishers or producers.101 Thus it may be argued that while moral rights are concerned with the ‘fruits’ of the creative process, creative autonomy addresses the ‘roots’.

5.4 A Consequentialist Case for Creative Autonomy In the preceding subchapter, this book identified some copyright deontological theories that provide theoretical justification for creative autonomy. However, although the theories of Locke, Kant and Hegel feature the implicit primacy of creative autonomy, elements of their 98 The relationship between creative autonomy and authorial personality were identified in Kant and Hegel’s theories, supra, Sects. 5.3.2 and 5.3.3. 99 This may be argued on the basis of droit de suite (resale royalty right) which does not directly apply to the issue at hand; the droit de suite right may have been introduced with the intention of providing benefits to artists and authors of manuscripts when the value of their works appreciate; however the right has been criticized as being capable of altering the negotiating platform of young artists and authors, as their publishers and marketers may be wary of retrospective claims being made against them, Towse, R, “Copyrights and Artists: A View from Cultural Economics” (2006) 20 (4) Journal of Economic Surveys, pp 567–585, p 572. 100 Supra, Sect. 1.2.2. 101 Ibid.

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arguments also succinctly identify the need for balance between exclusive authorial rights and society’s needs. Locke’s first caveat warns that although individuals may appropriate resources held in common, they have a responsibility to leave a sufficient quantity in the commons for other individuals to access.102 In a similar way, Hegelian theory expresses concern for balance within property rights, thushe [Hegel] explicitly cautions us that individual rights of property, such as they are, cannot be expected to prevail over or to “trump” any of the demands that might be made for the realization or maintenance of a genuine ethical community or state.103

Consequentialist theories endeavour to strike a balance between competing ideals. They are distinct from deontology and have been described as theories which rationalise justification for copyright on the basis of the effects the law may have.104 They are centred on identifying the economic and cultural value copyright may have on society, in relation to negative effects its absence may have, and it may therefore be argued that such theories are either retrospective or speculative in nature.105 With regard to the economic effects of copyright law, such discussions have included the claim that copyright goods make significant contributions to ‘national GDPs and international trade’,106 and analysis of the value of copyright industries may be economically assessed through the ‘value added’ method.107 However, in cultural terms such as music, this

102 Supra, Sect. 5.3.1; Locke, J, Two Treatises of Government, op. cit., p 189. 103 Waldron, J, The Right to Private Property, op. cit., p 343. 104 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 52. 105 HC Deb 05 February 1841, vol 56, col 341–360, col 346, sir Macaulay’s reasoning

that ‘we cannot have such a supply unless men of letters are liberally remunerated…’, is of consequential nature; Plant also makes consequentialist arguments in conceptualizing the fate of book production in the absence of copyright law, and making assertions as to what legislative processes on copyright law must consider, Plant, A, “The Economic Aspects of Copyright in Books” (1934) 2 Economica, pp 167–195, p 168. 106 Ramello, GB and Silva, F, “New Directions in Copyright Law and Economics” (2007) 3 (3) Review of Law and Economics, pp 643–647, p 643; Jehoram, HC, “Critical Reflections on the Economic Importance of Copyright” (1989) 20 (4) IIC International Review of Industrial Property and Copyright, pp 485–497, p 485. 107 Frith, S and Marshall, L, op. cit., p 66; “value added” refers to the contribution of a given industry to the Gross Domestic Product of a country, Price, T, The Economic

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proposition may be difficult to assess for its cultural benefits because, as Callahan suggests, albeit rather esoterically, music has no value in terms of ‘equivalence in the process of exchange’.108 Be that as it may, the importance of consequentialist assessments is emphasised by the presence of industries and economic activities which depend on, and derive their value from copyright laws.109 Utilitarian thought and economic analysis may be theoretically instructive in consequentialism, and some models have been formulated in efforts to measure efficiency, such as the evaluation theories of Pareto, Coase and the Kaldor-Hicks method. This subchapter briefly highlights these theories and the consequentialist abstraction by which copyright is theorised as a balance between the dual concerns of providing economic incentives for authors, and ensuring societal access to cultural goods. It then argues that the deontological notion of creative autonomy is a necessary inclusion in the dual consequentialist framework on copyright, and it promotes its consideration as a third concern. 5.4.1

Classical Utilitarian Thought

It has been argued that although utilitarianism and economic analysis of law have been used interchangeably and are both concerned with public welfare, they are distinct fields of study, each with its own ‘technical vocabulary, theorems, methodologies, etc’.110 Utilitarianism entails the dual strands of ‘act utilitarianism’ and ‘rule utilitarianism’, but its primary concern appears to be the assessment of morality on the basis of individuals’ sensory perceptions.111 The contributions of Bentham and Mill are considered notable and influential in discussions on utilitarianism, as Bentham approached the concept of utility from the premise of choices

Importance of Copyright (Common Law Institute of Intellectual Property, London, 1993), p 4. 108 Callahan, M, The Trouble with Music, op. cit., p 199. 109 Scherer, FM, Quarter Notes and Bank Notes (Princeton University Press, Princeton

and Oxford, 2004), p 155. 110 Posner, RA, “Utilitarianism, Economics and Legal Theory” (1979) 8 (1) Journal of Legal Studies, pp 103–140, p 105. 111 Parekh, B (ed), Jeremy Bentham: Ten Critical Essays (Frank Cass, London, 1974), p 1; Scanlon, T, “Contractualism and Utilitarianism” (1982) 103 (110) Utilitarianism and Beyond, pp 267–286, p 267; this may be described as a subjective foundation.

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made between pleasure and pain, and Mill, his student and protégé, consolidated upon his work.112 In Bentham’s reasoning, actions and laws are justified depending on the happiness or pain they may cause to an individual or to society as the case may be.113 In elucidating, he states that since communities are made of individuals, utilitarian assessments consider the aggregate happiness of all individuals within a community.114 Bentham canvassed the ‘Greatest Happiness Principle’ which ‘holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to promote the reverse of happiness’.115 Still with regard to the concept of ‘happiness’, Mill argues that since every action has an effect, people’s choices of action are generally premeditated in order to achieve the effect that brings them the greatest happiness.116 Accordingly, he asserts that reason may be judged in a sensory manner, and that utilitarianism approaches reasoning with the aim of achieving happiness.117 He argues that people’s primary ‘desire’ is happiness and that because happiness is the general goal of human activity, happiness is ‘one of the criteria of morality’.118 Moreover, he goes further to categorise pleasures and to assert that some pleasures, such as intellectual pleasures, are more valuable than others.119 From the foregoing, it may be understood that utilitarianism is an aspect of consequentialism that is concerned with happiness.120 However,

112 Parekh, B (ed), op cit., p 1; Viner, J, “Bentham and JS Mill: The Utilitarian Background” (1949) 39 (2) The American Economic Review, pp 360–382, p 363. 113 Smart, JJC and Williams, B, Utilitarianism: For and Against (Cambridge University Press, London, 1973), p 9; Glover, J (ed), Utilitarianism and its Critics (Macmillan, New York, 1990), p 10. 114 Ibid., p 10 and p 93. 115 Mill, JS, Utilitarianism, Liberty and Representative Government (Dent, London,

1910), p 6. 116 Ibid., p 2. 117 Glover, J (ed), Utilitarianism and its Critics, op. cit., p 15. 118 Ibid. 119 He thus asserts that the pains that come with intelligence are to be more desired than whatever gains or satisfaction may be found in folly, Mill, JS, Utilitarianism, Liberty and Representative Government, op. cit., p 9. 120 Smart, JJC and Williams, B, Utilitarianism: for and Against, op. cit., p 79; Viner, J, “Bentham and JS Mill: The Utilitarian Background”, op. cit., p 365.

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in elucidating upon Mill’s concept of happiness as an arbiter for morality, it has been argued that Mill appears to have wrongly used the concepts of the ‘desired’ and the ‘desirable’ interchangeably.121 This has been criticised on the basis that what is desired may not always be what is good, whereas the ‘desirable’ means what ought reasonably to be desired; and this introduces further complexities to the concept.122 In contemporary times, the concept of ‘gross national happiness’ popularly used by the state of Bhutan as a measurement for progress may be related to Mill’s theory.123 However, it has been noted that there may be problems associated with measuring gross national happiness, regarding consensus over what indicators are to be used.124 Additionally, while the indicators may move along a scale, the level of happiness may not change.125 In this regard therefore, it has been argued that utilitarianism as a philosophy does not proffer an established method of objectively measuring general happiness among a population.126 Again, in the utilitarian quest for the ‘greater good for the greater number’, it has been argued that the theory does not clearly identify who constitutes the ‘greater number’, in the sense that the question of whose happiness counts, may extend infinitely to animals and beyond.127 Relating this concept to copyright law, justification may be sought by claims that its benefits to society outweigh societal losses which may occur through its existence. However, the computation of benefits and losses occasioned by copyright systems may be practically challenging if not

121 Glover, J (ed), Utilitarianism and its Critics, op. cit., p 21. 122 Ibid., p 22. 123 Kelly, A, “Gross National Happiness in Bhutan: the Big Idea from a Tiny State that Could Change the World” (December 1, 2012), The Guardian, available at http://www.theguardian.com/world/2012/dec/01/bhutan-wealth-happin ess-counts (accessed 25 February 2020). 124 Di Tella, R and MacCulloch, R, “Gross National Happiness as an Answer to the Easterlin Paradox?” (2008) 86 (1) Journal of Development Economics, pp 22–42, p 38. 125 Ibid. 126 Posner, RA, “Utilitarianism, Economics and Legal Theory”, op. cit., p 114; the efforts of Bentham to create a model for the measurement of happiness were reportedly widely criticised, Viner, J, “Bentham and JS Mill: The Utilitarian Background”, op. cit., p 367. 127 Posner, RA, “Utilitarianism, Economics and Legal Theory”, op. cit., pp 112–113.

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impossible.128 It has been argued that such computation must consider the economic and cultural costs and benefits of copyright to society, individual creators and continued creative production, among other subissues129 ; some of which may not be capable of numeric expression.130 Furthermore, the nature of copyright products as ‘public goods’,131 poses challenges for accurate assessments of the costs and benefits of the law.132 Regarding the notion of creative autonomy, which is the main concern of this book, it would also be important for assessments of copyright utility to consider that happiness in utilitarian theory is not necessarily defined monetarily.133 5.4.2

Theories on the Measurement of Utility

It has been shown above that although utilitarian thought may be considered influential in consequentialism, it does not appear to proffer a generally accepted method or technique through which utility may be measured.134 Accordingly, copyright may be analysed in terms of efficiency, and a method of measurement for efficiency was notably introduced by Vilfredo Pareto.135 Pareto agreed with the view of satisfaction as the goal of human action, but argued that economic analysis should not be focussed on the aggregate of each human being’s satisfaction. Rather, he ‘reduced those quantities to homogenous magnitudes’ and asserted that efficiency occurs at the point where any movement of resources to make one party better

128 Merges, RP, Justifying Intellectual Property, op. cit., p 2. 129 Watt, R, Copyright and Economic Theory: Friends or Foes? (Edward Elgar, Chel-

tenham and Northampton, 2000), p 119. 130 Ibid., p 123; Callahan, M, The Trouble with Music, op. cit., p 199. 131 Infra, Sect. 5.4.3. 132 Yen, AC, “The Legacy of Feist: Consequences of the Weak Connection between Copyright and the Economics of Public Goods” (1991) 52 (5) Ohio State Law Journal, pp 1343–1378, p 1366. 133 Viner, J, “Bentham and JS Mill: The Utilitarian Background”, op. cit., p 374. 134 Supra, Sect. 5.4.1. 135 Tarascio, VJ, Pareto’s Methodological Approach to Economics: A Study in the History of Some Scientific Aspects of Economic Thought (University of North Carolina Press, Chapel Hill, 1968), p 104.

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off would result in another party being made worse off.136 The notion of ‘Pareto optimality’ is sometimes described as free exchange,137 and in Pareto’s argument, exchanges made on the platform of such optimality, may involve considerations of non-economic nature such as ethics, and social utility.138 Transactions that occur on this platform are deemed to be ‘Pareto efficient’.139 While it may be compelling to conduct an analysis of copyright law in terms of its impact on efficiency and wealth creation, Pareto optimality has been described as an insufficient method of analysis. It has been considered to be restrictive, as it may be impractical to assume that a policy or law will improve some individual without having any adverse effects on some other person.140 It has thus been asserted that ‘in order to make this optimality correspond to a social maximum, an explicit welfare function is required’.141 Expounding upon this assertion, it has been noted that this explicit social welfare function may be established by groups within society, general society itself, or by government.142 To satisfy the requirement of an explicit welfare function, attention may be drawn to fundamental freedoms which the concept of human rights secure.143 With particular reference to copyrights, the reference to an explicit welfare function appears to reinforce the need to protect creative autonomy. The Kaldor-Hicks method revised the Pareto approach to efficiency, but measured it in terms of monetary exchange.144 Propounded by

136 Ibid., p 79 and p 82. 137 Gifford, A, Jr and Santoni, GJ, Public Economics: Politicians, Property Rights and

Exchange (The Dryden Press, Illinois, 1979), p 21. 138 Tarascio, VJ, Pareto’s Methodological Approach to Economics: A Study in the History of Some Scientific Aspects of Economic Thought, op. cit., p 82. 139 Cirillo, R, The Economics of Vilfredo Pareto (Frank Cass, London, 1979), p 46. 140 Dutfield, G and Suthersanen, U, Global Intellectual Property Law, op. cit., p 49. 141 Cirillo, R, The Economics of Vilfredo Pareto, op. cit., p 51. 142 This argument cites the theories of Bergson which required ‘a set of explicit value

judgments’, and Arrow, who argued that the social function must be consistent and must be established by a democratic process, ibid., p 52. 143 Supra, Sect. 5.2. 144 Stringham, E, “Kaldor-Hicks Efficiency and the Problem of Central Planning”

(2001) 4 (2) The Quarterly Journal of Austrian Economics, pp 41–50, p 42.

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Kaldor and Hicks,145 it is not concerned with the measurement of utility based on happiness or satisfaction, but asserts that maximum social wealth is a function of people’s willingness to pay in various outcomes.146 Nevertheless, in a critique of this method, it has been argued that some aspect of morality should be involved in its considerations and analysis.147 This inadvertently, or perhaps necessarily, incorporates deontological concepts into consequentialist theory, thus providing scope for the consideration of creative autonomy. Coase’s theory may be considered as more specific to law. The theory set out to analyse legal rights by their contribution to efficiency, and its first premise argues that the initial distribution of property rights (who owned what) does not matter as long as there is a free market, because rights will be traded so they end up with the person or firm that places the highest values on them.148

In Coase’s analogy of the crop farmer and cattle owner who work in adjacent fields, Coase opines that where the cattle stray into the farmer’s land and cause damage requiring compensation, the crop farmer may be willing to stop cultivating her land (even if temporarily) if the compensation received from the cattle owner at least amounts to the profit that would have been made from selling her produce.149 He then asserts that ‘with costless market transactions, the decision of the courts concerning liability for damage would be without effect on the allocation of resources’.150 However, Coase’s analogy does not consider that the crop farmer may have more concerns about maintaining production that

145 Zerbe, RO Jr, Bauman, Y, et al, “An Aggregate Measure for Benefit-Cost Analysis” (2006) 58 (3) Ecological Economics, pp 449–461, p 450. 146 Stringham, E, “Kaldor-Hicks Efficiency and the Problem of Central Planning”, op. cit., p 42. 147 Zerbe, RO Jr, Bauman, Y, et al, “An Aggregate Measure for Benefit-Cost Analysis”, op. cit., p 4. 148 Frith, S and Marshall, L, Music and Copyright, op. cit., p 61. 149 Coase, RH, “The Problem of Social Cost” (1960) 3 (1) Journal of Law and

Economics, pp 1–44, p 4. 150 Ibid, p10.

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are non-monetary in nature. Such concerns may include notoriety, bragging rights in a community farmers’ union, the maintenance of a family tradition of farming the same parcel of land for generations, or simply the personal satisfaction of crop production. Coase’s proposition about free markets has also been criticised as appearing to assume that there are markets at varying levels of efficiency which are capable of coordinating their various players in order to achieve consistent results.151 However, in defence of Coase’s theory, the theory does take into consideration the problem of transaction costs and asserts thatSuch a rearrangement of rights will only be undertaken when the increase in the value of production consequent upon the rearrangement is greater than the costs which would be involved in bringing it about.152

Furthermore, Coase argues that in achieving efficiency with relation to rights, One arrangement of rights may bring about a greater value of production than any other. But unless this is the arrangement of rights established by the legal system, the costs of reaching the same result by altering and combining rights through the market may be so great that this optimal arrangement of rights, and the greater value of production which it would bring, may never be achieved.153

Coase thus acknowledges that in relation to rights, where a specific outcome is projected as the optimally beneficial outcome for society, that outcome may never be realised in a free, unregulated market, except there is direct legal regulation of the trade in rights. It may therefore be argued that trade in rights (such as copyrights) require the establishment of foundational fundamentals such as creative autonomy, upon which a truly free market can be established; ‘an explicit welfare function’.154 This again

151 Katz, AW, Foundations of the Economic Approach to Law (Foundation Press, New York, 1998), p 4. 152 Coase, RH, “The Problem of Social Cost”, op. cit., p 15. 153 Ibid., p 16. 154 Cirillo, R, The Economics of Vilfredo Pareto, op. cit., p 51.

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suggests that within consequential analysis of efficiency, deontological concerns are unavoidably represented. 5.4.3

The Consequentialist Computation of Efficiency in Copyright

Notwithstanding the foregoing, if it is true that numerous expressions of musical and artistic creativity were prevalent long before the establishment of modern copyright, it may be argued that the investigation of copyright as an economic tool to guarantee investments of capital in cultural production is unnecessary.155 However, the practice of patronage in the middle ages and the accompanying possibilities of censorship indicate otherwise, as they highlight the need for regulation in relation to the rights and products associated with creative endeavour.156 Moreover, the problems associated with trade in public goods, amplify the necessity for a legal solution in such markets. Public goods, as distinct from private goods, are goods which are non-excludable and nonrivalrous in consumption.157 Information goods fall into this description,

155 Negus, K, and Pickering, M, Creativity, Communication and Cultural Value (Sage, London and Thousand Oaks, et al, 2004), p 3; before copyright laws were established, the Medici family owned a vast collection of paintings, manuscripts, sculptures and other artworks, http://leonart.over-blog.com/pages/The_art_collection_of_Lorenzo_de_ Medici-1975107.html (accessed 25 February 2020); William Shakespeare, is also said to have enjoyed the royal patronage of Queen Elizabeth and King James1, Brown, H, Shakespeare’s Patrons & Other Essays (JM Dent & Sons, London, 1912); while evidence shows that manuscripts and artworks were produced before the establishment of copyright law, the role of patrons in connection with cultural works may serve as evidence that creative endeavour may often require incentivisation. However, as Plant argues, it must be noted that this is not always the case. He argues that there are authors who would be willing to pay for their works to be published without any anxieties about profits or rewards, Plant, A, “The Economic Aspects of Copyright in Books”, op. cit., p 168. 156 Macaulay agrees that copyright, as opposed to patronage, is the more ideal way for remunerating literary creative effort in order to ensure its continuity; but he considered copyright as an inevitable monopoly, and all monopolies as evil. He argued that ‘for the sake of the good, we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good’, HC Deb 5 February 1841, vol 56, col 348. 157 Raven, F, “Copyright and Public Goods: An Argument for Thin Copyright Protection” (2005) 8 (3) A Journal of Media and Culture, par 3.

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and it has been succinctly asserted that copyright facilitates the ‘private production of pubic goods’.158 In determining the appropriate parameters of a legal solution for trade in creative goods, utilitarian postulations and theories on efficiency have been used to analyse copyright law. This subchapter identifies and examines the dual socio-economic concerns that have been extrapolated as the primary traditional canons within economic analysis of copyright. These are the competing concerns of providing incentives for authorial activity, and ensuring society’s access to cultural works.159 The identification of these concerns is made with a view to establish whether they are exhaustive, exclusive representations of the consequentialist concerns in copyright law, and with a view to establish the need to include creative autonomy as a third consideration in the consequentialist rationale for copyright law. 5.4.3.1 Incentives for Authors The first of the dual economic arguments for copyright is that copyright provides a system to secure rewards and incentives for authorial activity.160 With regard to the need to secure financial incentives for authorial activity, it has been argued that the severity of trade in public goods is compounded by the notion that cultural goods like music, are often associated with entertainment and thus the efforts entailed in preparing the finished products may be underestimated.161 It has also been argued that valuing public goods on the basis of average willingness to pay, at best, yields arbitrary results.162 Therefore in consideration of the vast amounts of time, monies and manual labour entailed in creating cultural works, it has been argued that a regulatory system should be in

158 Yen, AC, “The Legacy of Feist: Consequences of the Weak Connection between Copyright and the Economics of Public Goods”, op. cit., pp 1364–1366. 159 Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law (Belknap Press of Harvard University Press, Cambridge, 2003), p 11. 160 Davies, G and Rauscher auf Weeg, HH, Challenges to Copyright and Related Rights

in the European Community (ESC Publishing Limited, Oxford, 1983), p 13; Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 71. 161 Callahan, M, The Trouble with Music, op. cit., p 53. 162 Kahneman, D and Knetsch, JL, “Valuing Public Goods: The Purchase of Moral

Satisfaction” (1992) 22 (1) Journal of Environmental Economics and Management, pp 57–70, p 58.

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place by which authors, as creators of public goods, can earn a living from their works and justify investments in them.163 Copyright is the system that has been relied upon to secure rewards and incentives for authors.164 It is generally considered that, as the United States Supreme Court in Twentieth Century Music Corp v Aiken held, copyright’s aim is to provide incentive and ‘stimulate artistic creativity for the general public good’.165 However, in practice, the proportion of creative people able to make a living from their profession may not substantiate this argument.166 Therefore, the issue of incentives may also be used as a double-edged sword to question the justification of copyright.167 Again, rather curiously, it has been observed that high remuneration for creative endeavour is capable of discouraging some creative people.168 Dames argues that historically, incentives have not necessarily served as a major or singular motivation for creativity.169 Boldrin asserts that after searching empirical literature, no evidence appears to exist for the claim

163 Currah, A, “Managing Creativity: The Tensions Between Commodities and Gifts in a Digital Networked Environment” (2007) 36 (3) Economy and Society, pp 467–494, p 468. 164 Liebowitz, SJ and Watt, R, “How to Best Ensure Remuneration for Creators in the Market for Music? Copyright and its Alternatives” (2006) 20 (4) Journal of Economic Surveys, pp 513–545, p 513. 165 Twentieth Century Music Corp v Aiken [1975] 422 US, 151 at p 156; Schulenberg, R, Legal Aspects of the Music Industry (Billboard Books, New York, 2005), p 494. 166 Masnick, M, “How Do You Measure the Benefits Of Copyright” (2010), available at http://www.techdirt.com/articles/20101123/03020511984/how-do-youmeasure-benefits-copyright.shtml (accessed 25 February 2020); Albini, S “The Problem With Music”, available at http://www.negativland.com/albini.html (accessed 15 January 2011); Love, C, “Courtney Love Does The Math” (2000), available at http://www.salon. com/technology/feature/2000/06/14/love (accessed 15 January 2011); it has been noted that performers and authors have typically been at a disadvantage in negotiations over the exploitation of their works, Guibault, L, Hugenholtz, PB, et al, Study on the Conditions Applicable to Contracts Relating to Intellectual Property in the European Union: Final Report (Study Contract No ETD/2000/B5-3001/E/69, 2000), p 1. 167 Gosseries, A, et al (eds), Intellectual Property and Theories of Justice (Palgrave Macmillan, Chippenham and Eastbourne, et al, 2008), p 15. 168 Ibid., p 96. 169 Dames, KM, “Intellectual Property, Copyright’s Purpose and Principal Justification”,

op. cit., p 19.

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that the existence of exclusive rights would increase creative endeavour.170 Similarly, it has been shown that with some classical music composers of the nineteenth century whose careers coincided with the increasing development of copyright law, their creative output seemed to reduce significantly as their revenues increased.171 Even so, this may not serve as conclusive evidence that the existence of incentives discourages creative endeavour altogether because in the examples above, factors such as age and ‘diminishing creativity’ were not considered as possible reasons for reduced creative output. What may be deduced here is that, the argument that views copyright as a means of securing incentives for authorial activity, appears fragile. Perhaps empirical investigation of creative people may be required to conclusively identify the factual motivation for their endeavours.172 5.4.3.2 Society’s Access to Cultural Works The second canonical concern in the economic analysis of copyright law is the need to secure society’s access to cultural works.173 It has been argued that in copyright’s goal to secure incentives for authorial activity, the reach of the law must not be so wide as to jeopardise society’s essential access to cultural works.174 This is because, if copyright is established without limitations as a method of rewarding creativity, the exclusive rights may

170 Boldrin, M and Levine, DK, “Does Intellectual Monopoly Help Innovation?” (2009) 5 (3) Review of Law and Economics, pp 991–1025, p 995. 171 This curious trend was observed in the pre- copyright era careers of Gioachino Rossini and Gaetano Donizetti, and later, in the careers of Robert Schumann and Verdi, during which time copyright law had been introduced, Scherer, FM, “The Emergence of Musical Copyright in Europe from 1709 to 1850” (2008) 5 (2) Review of Economic Research on Copyright Issues, pp 3–18, p 10. 172 Supra, Sect. 4.5.1. 173 Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law,

op. cit., p 71; it has been argued that the attitude of the US Supreme Court to copyright matters maintains the position that the copyright system is geared more towards social welfare than the reward of creators, Gordon, WJ, “An Inquiry into the Merits of Copyright: the Challenges of Consistency, Consent and Encouragement Theory” (1989) 41 (1) Stanford Law Review, pp 1343–1469, p 1437; United States v Paramount Pictures 334 US 131 (1948); Mazer v Stein 347 US 201 (1954). 174 Boldrin, M and Levine, DK, “Does Intellectual Monopoly Help Innovation?” op. cit., p 991.

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very easily generate monopolies.175 In this regard, it may be argued that limiting the duration of copyright, secures the viability of a public domain, so that creative members of society are able to generate more cultural material using resources from the public domain, thus ensuring continued optimal supply in the market for cultural goods. While it may be conceded that the existence of modern copyright addresses the cultural interests of society, concern for further investigation has been expressed in the assertion that ‘if such legislation no longer serves its purpose, the public interest will be the first to suffer….’176 5.4.3.3

Creative Autonomy in the Consequentialist Formula for Efficiency in Copyright Law The consequentialist approach to copyright law is based on the notion that the protection of society’s access to cultural goods is unavoidably linked to the preservation of authors’ willingness to create same. With regard to authors’ incentives, it has been noted that monetary incentives, presumably assured by copyright, are not necessarily conclusive motivation for authorial activity.177 Therefore, regarding consequentialist assessments, it has been asserted that ‘judged by its results rather than its rhetoric, copyright legislation in the common law tradition historically fails any strict utilitarian measure’.178 Relying on the dual foundation of access to cultural goods and financial incentives for authors as the exhaustive consequentialist approach to copyright is thus tenuous. The fieldwork conducted for this book observed data which suggests that creative autonomy, albeit deontological in nature, may indicate authorial motivation far more than is currently acknowledged.179 It is also apparent that the exercise of creative autonomy will result in more diversity in the products of cultural industries. On the basis of consequentialist reasoning, it therefore appears imperative for the concept of creative

175 Ibid. 176 Davies, G and Rauscher auf Weeg, HH, Challenges to Copyright and Related Rights in the European Community, op. cit., p 13. 177 Supra, Sect. 4.3.1. 178 Goldstein, P and Hugenholtz, B, International Copyright: Principles, Law and

Practice (3rd ed, Oxford University Press, Oxford and New York, et al, 2013), p 18. 179 Supra, Sect. 4.5.1.

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autonomy to be added to the cardinal considerations within economic analysis of copyright law.

5.5

Conclusion

This chapter set out to explore the justification theories on copyright law, and to identify their tacit support for creative autonomy. It explored human rights jurisprudence, identified creative autonomy within deontological theories, and argued for the inclusion of creative autonomy within consequentialist analysis of the law. Having searched inconclusively for unequivocal empirical evidence to support efficiency as a grundnorm for intellectual property rights, Merges argued that while consequentialist approaches were important for the study of copyright, they could only be conceived of as ‘midlevel’ concepts. However, it may be argued that introducing the concept of creative autonomy to the already established consequentialist formula of ‘access and incentives’ may provide compelling results for policy and business. The next three chapters of this book will analyse certain aspects of copyright law, music business models and contracts, respectively that effectively undermine the exercise of creative autonomy for performing authors.

CHAPTER 6

Problems for Creative Autonomy in Copyright Law

6.1 Introduction: Anomalies in the Dynamics of Copyright Law From the data reported and analysed for this book, it was observed that current operations in the Nigerian popular music industry may pose threats to the creative autonomy of performing authors.1 Threats to creative autonomy seem to resemble the situations which discussions on copyright law from earlier times endeavoured to avoid.2 In debates at the House of Commons over copyright extension in the nineteenth century, Macaulay vociferously asserted that patronage as an alternative to copyright was culturally reprehensible as it could make ‘men of letters’ beholden to their patrons and thus lose autonomy in their authorshipI can conceive no system more fatal to the integrity and independence of literary men, than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into its scandal and its pest. We

1 Supra, Sects. 4.5 and 4.7. 2 Davis, J, Intellectual Property Law, op. cit., p 22.

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have then only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may.3

Despite the historical and theoretical links between copyright and creative autonomy,4 the current state of copyright law and policy has been criticised by the view that, ‘the prime concern is with monetary success…, in fact both policy and law have relatively little engagement with most cultural work and what makes it tick’.5 The data analysed in Chapter 4 of this book highlighted problems for creative autonomy,6 which may be broadly categorised as the followinga. problems occasioned by copyright law; b. problems occasioned by new business models; and c. problems occasioned by contracts. This chapter will assess some anomalies which may be occasioned by copyright law,7 and will identify some business practices of recording companies which appear to thrive on the basis of problematic legal provisions. It will discuss the various ways in which they can affect the creative autonomy of performing authors. While this chapter primarily refers to the problems encountered in performing authors’ exercise of creative autonomy in Nigeria, the discussion of these problems will refer to US and UK examples.8 The reason for the use of UK and US examples is that Nigerian case law on the subject appears to be minimal. According to Sodipo, who was interviewed for this book-

3 HC Deb 05 February 1841, vol 56, par 347 (emphasis added). 4 Supra, Sect. 1.7.2, and Chapter 5. 5 Waelde, C and Schlesinger, P, “Copyright and Cultural Work: An Exploration” (2012) 25 (1) Innovation: the European Journal of Social Science Research, pp 11–28, p 13. 6 Supra, Sect. 4.6. 7 Problems occasioned by new business models and contracts will be identified and

discussed, infra, Chapters 7 and 8 respectively. 8 Supra, Sect. 1.6; the use of UK and US examples is due to the origins of recorded music and popular music industries, Mulhaney-Clements, S, “The Impacts of the Differences between UK and US Copyright Laws for Sound Recordings on Musicians” (2010) 48 (9) Management Decision, pp 1388–1399, p 1389.

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I can say with significant experience and authority that 80% of copyright disputes do not go to court. Of the 20% that get to court, only a quarter stay on in the court system. The other 15% get settled out of court.9

This chapter approaches its discussion on copyright anomalies on the basis of performing authors’ concerns, and considers the challenges to creative autonomy in the stages of pre-fixation and fixation of musical works. The distinction between pre-fixation and fixation reflects the unique challenges that performing authors may encounter in the collaborations involved in the fixation process.10 In the pre-fixation stage, the requirement of fixation will be assessed through the lens of practical realities that may occur in the time frame between authorship and fixation. Regarding the fixation stage, the effects of fixation as a foundational prerequisite for copyright’s existence will then be analysed in relation to performing authors’ concerns. In this stage, the sufficiency of performers’ rights as a remedy for the precarious position of performing authors will be assessed. It will also analyse the effects of vesting authorship in sound recordings as a distinct right, rather than as a derivative. Subsequently, the effectiveness of legal restrictions on the transfer of moral rights will also be discussed.11

6.2 6.2.1

Pre-fixation

The Interval between Creation and Fixation

Nigerian copyright law requires copyrightable works to be fixed in a perceivable medium of expression in order to qualify for copyright protection.12 For certain copyrightable works,13 the creation of the work and

9 (11 July 2013) interview with Professor Bankole Sodipo, op. cit.; these systems also have the same common law heritage as the Nigerian legal system, and both the UK and the US have relatively economically advanced music industries. 10 The dynamics of such collaborations have been identified, Sterling, JAL, World Copyright Law (3rd ed, Sweet & Maxwell, London, 2008), p 319. 11 Infra, Sect. 6.4. 12 Section 1 (2) (b) Copyright Act 2004 (Nigeria); this concept is discussed further,

infra, Sect. 6.3. 13 Copyrightable works under Nigerian law is a closed list. The Act provides that ‘subject to this section, the following shall be eligible for copyright—(a) literary works; (b) musical works; (c) artistic works; (d) cinematograph works; (e) sound recording; and (f) broadcasts.’ Section 1 (1) Copyright Act 2004 (Nigeria).

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its fixation may be inseparably intertwined, to the extent that there is no time lapse between both. It has been opined that artistic works fall into this category and that ‘the act of creation and fixation of artistic works are indivisible’.14 However, with musical works and literary works, conflicts may arise where a work is created and performed before it is recorded or fixed. Case law in the UK only appears to have solved this conundrum in the 1999 case of Hadley v Kemp,15 where the court established that a musical work can exist aurally before they are fixed. UK law has not been automatically applicable to Nigerian jurisprudence since Nigerian independence in 1960.16 Therefore, in such cases under Nigerian law, the performance of an unrecorded or unfixed work may procure performers’ rights, but the work itself would not enjoy copyright protection until it is fixed in a perceivable medium.17 The position is the same for unrecorded songs as well as for lectures, dramatic performances and stories.18 Nigerian case law on the subject appears to be scant,19 however, a brief history of the British position as observed from case law is instructive.20 In the case of Walter v Lane the decision of the House of Lords recognised a reporter’s copyright in their handwritten report of Lord Rosebery’s speech. According to the decision in this case, the fact that the reporter’s shorthand notes were later transliterated constituted sufficient skill and judgement for the report to be considered an original work, regardless of the fact that the report was a verbatim record of Lord Rosebery’s speech. The House of Lords held that the report of the speech and the speech itself had two different authors and that the rights in the report did not vitiate the rights in the speech. It was further held that the mere act of creating an original composition without fixing it in a 14 Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 45. 15 [1999] EMLR 589. 16 Section 32 (1) Interpretation Act C123, LFN 2004 (Nigeria). 17 Section 1 (2) (b) Copyright Act 2004 (Nigeria). 18 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 83; the effectiveness

or otherwise of performers’ rights in such situations will be discussed further, infra, Sect. 6.3.1. 19 Babafemi, FO, Intellectual Property; the Law and Practice of Copyright, Trademarks, Patents and Industrial Designs in Nigeria, op. cit., p 18. 20 Walter v Lane [1900] AC 539 and the latter case of Donoghue v Allied Newspapers Ltd [1938] Ch. 106.

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format of expression does not constitute authorship for the purposes of the Copyright Act. It did not matter for the Court that the speaker subsequently published his speech as a book, and the book was thus held to be an infringement of the copyright in the reporter’s work. However, it is instructive to note that the dissenting judgement in this case argued that where a speech is reported verbatim, the skill involved in reporting the speech regardless of how specialised such skills are, should not be equated with authorship and should not negate the authorship of the speaker. This argument agrees with the construction of the concept of authorship in the deontological theories of Kant and Hegel, discussed in Chapter 5.21 In relation to audio recordings, which could generally pertain to music, the dissenting opinion also highlighted the similarities between the work of a stenographer and a phonograph and it argued thusIf the owner of a phonograph publishes the speech as taken down by the phonograph [and] he is [then considered as] the author of the report and entitled to copyright [.] I should have thought (and think) this a reductio ad absurdum of the whole argument.22

It is therefore clear that the interval between the creation and fixation of a work constitutes a problem for performing authors who may create some of their work in the course of public and private performances. 6.2.2

Problems for Performing Authors

The application of the decision in Walter v Lane to the popular music industry may cause practical hardship for performing authors’ creative autonomy. This may happen when performing authors create musical compositions during their studio sessions with producers, and the first fixation of the composition is carried out with the producer’s studio equipment. The fixation may be effected by simply pressing a button on a device, however, strict adherence to the Act’s requirement of fixation would logically result in a re-enactment of the decision in Walter v Lane, and the pressing of that button would constitute authorship over and above the creation and first performance of the song. Performing authors 21 Supra, Sects. 5.3.2 and 5.3.3 of this book. 22 Walter v Lane, op. cit.

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may thus feel restrained from authorial expression in such circumstances which may otherwise be ideal for their craft. Such circumstances may occur in recording studios or during unscripted live performances that may be recorded without the performing author’s authorisation. The position of Nigerian law on this issue, is established in section 1 (2) (b) Copyright Act 2004 (Nigeria), and does not differ from Walter v Lane, in that it does not recognise the copyright of a speaker or performing author in a work that has been created and expressed, but which has not been fixed.23 In the UK, the Walter v Lane decision has been superseded by the decision in Hadley v Kemp, but this decision does not automatically apply in Nigeria.24 A similar scenario may also occur among popular music authors who lack musical literacy and have to dictate or perform their compositions in order to have them fixed in a perceivable format.25 Where the person taking the dictation is the producer of the work, they may attempt to assert their copyright in the work on the basis of their involvement in that role, and this may stifle the authorship of a performing author compelled by necessity to use such methods of fixation. Although it has been established in UK case law that the mere contribution of ideas to the authorial process does not constitute authorship,26 the parameters for the involvement of those who record what is already authored or created may require clearer definition in Nigerian law. The question may be asked whether the person who makes the material for dictation or the person who takes the dictation should be considered as the author of the material. It may be valid to argue that the person taking the dictation does so on the basis of temporary employment and that copyright in the work belongs to the creator who dictates the work. However, where the person taking the dictation does so on a non-paid basis with the intention to render assistance, the fact that they receive no payment may create an avenue through which they may subsequently claim copyright in the work. This dilemma is exacerbated by the fact that the Act simply defines the author as the person who ‘creates the work’.27 23 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 84. 24 Section 32 (1) Interpretation Act C123, LFN 2004 (Nigeria). 25 Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 45. 26 Tate v Thomas [1921] 1 Ch. 503. 27 Section 51 (1) par (f) Copyright Act 2004 (Nigeria).

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If the author is defined as the person who physically creates the work, section 10 (2) (a) and (b) of the Act may be relied on as a basis for such usurping claims, as it were. It provides thatwhere the work is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship …the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under the contract.28

This may only be averted where there is a contractual provision to the contrary clearly stating that the creator is commissioning the fixation of the work and is the author of the work.29 Therefore, this dilemma may require judicial interpretation and expatiation of the word ‘create’ in Section 51 (1) par (f) of the Act. Also notable in this regard is the UK case of Donoghue v Allied Newspapers Ltd,30 where Lord Farwell’s dictum established that a person merely employed for the purpose of recording a composition verbatim cannot be taken as the author of the work, even if the recording process involved making shorthand notes and transcribing them.31 It appears that the major difference between this dictum and the decision in the Walter case,32 is the fact that the note taker is an employee of the creator and is contractually obligated to the employer, a situation recognised in Section 10 (3) of the Nigerian Act.33 The decision in Donoghue therefore appears to merely reinforce the onus on performing authors in such situations to pre-assert copyright in the works they may create and perform spontaneously, in the absence of which their authorship and autonomy may be endangered.34 In the Nigerian context, the scenario may be more complicated for performing authors who spend considerable periods of their working

28 Section 10 (2) (a) and (b) Copyright Act 2004 (Nigeria). 29 Ibid.; recording contracts made on the basis of “work-for-hire” will be discussed

further, infra, Sect. 8.3. 30 [1938] Ch 106. 31 Ibid., p 110. 32 Walter v Lane, op. cit. 33 Section 10 (3) Copyright Act 2004 (Nigeria). 34 Infra, Sect. 9.2.4.

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hours in recording studios, and it may create authorial wariness and disillusionment. The wariness of performing authors in such situations may be further heightened by the Nigerian case of Island Records Ltd & Ors v Pandum Technical Sales and Services Ltd & Anor,35 where the court held that the presence of a tape-recording facility did not qualify as evidence of copyright infringement. Thus, while it may be argued that authoring a song in a recording studio where there are sound recording facilities does not necessarily constitute evidence of infringement by the studio producer, it may constitute a potential danger for the rights and creative autonomy of performing authors who are unaware or unable to pre-assert their rights. Moreover, even if it is established that a song created in a recording studio was indeed fixed and claimed by the studio producer, the performing author may not be able to sustain a claim for copyright ownership or infringement, depending on the nature of their contract with the studio producer.36 Accordingly, while the requirement of fixation may proffer administrative solutions for copyright issues, a dilemma appears to exist for performing authors, and the prospects for their creative autonomy, because the interval between creation and fixation appears delicate. Problem: creative autonomy may be jeopardised in the interval between creating and performing a work, and the fixation of the work. Recommendation: Policy: musicians’ unions may establish seminars educating performing authors about protocols to observe at recording studios and performance venues.

6.3 Fixation: Its Definition and Impact on Authorship This book is primarily concerned with Nigerian popular music, and it has been noted earlier that popular music is generally comprised of three distinct copyrights in the lyrics or literary aspect of a composition, the

35 [1993] FHCLR 318. 36 Section 10 (2) (a) and (b) Copyright Act 2004 (Nigeria).

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musical aspect of the composition, and the sound recording.37 With regard to musical and literary works, one of the legal prerequisites for copyright protection in some jurisdictions is that they must be fixed or expressed in an identifiable format. The Berne Convention enables countries to decide for themselves on the adoption of the requirement of fixation.38 Thus, while common law systems generally require fixation as a necessity for vesting copyright protection, it has been noted that civil law countries do not typically have this requirement.39 The rationale for this requirement may be based on the fact that ideas are intangible subject matter, and as such it may be impractical to place restrictions on them, or to vest property rights in them.40 It has, however, been established in UK law that copyright does not exist in ideas, but in the recorded expression of ideas.41 US federal copyright law similarly provides that, ‘in no case does copyright protection for an original work of authorship extend to any idea….’42 Indeed, if it were possible to assert property rights in ideas, conflicts may arise because of the practical difficulties in establishing priority of conception. Consequently, it may also be difficult to prove infringement or to enforce protection for ideas. Similar to the positions in many common law systems,43 the Nigerian Copyright Act also rejects the notion of copyright in ideas by requiring

37 Supra, Sect. 1.8; however, there are exceptions such as jazz and classical music which may consist of intricate musical arrangements without lyrics. 38 Article 2 (2) Berne Convention 1886. 39 Sterling, JAL, World Copyright Law, op. cit., p 330; Davies, G and Rauscher auf

Weeg, HH, Challenges to Copyright and Related Rights in the European Community, op. cit., p 16. 40 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 60; it may be argued that trade secrets are deemed as a form of intellectual property in ideas, Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., pp 354–355; but the requirements for its protection and its industrial uses and applications may not apply directly to the music industry, as such trade secrets shall not be discussed in this book. 41 Sect. 1 (1) CDPA 1988 (UK); Adeney, E, “Authorship and Fixation in Copyright

Law: a Comparative Comment” (2011) 35 (2) Melbourne University Law Review, pp 677–696, p 689. 42 Section 102 (b), Copyright Act 1976 (US); Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 91. 43 Rahmatian, A, Copyright and Creativity: the Making of Property Rights in Creative Works, op. cit., p 43.

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fixation, and it goes further to recognise the effects that technological developments may have on this requirementA literary, musical or artistic work shall not be eligible for copyright unless… the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.44

It appears that the legislative phrasing of the Nigerian requirement of fixation could serve as a legal tool not only for restricting, but also for expanding the scope of copyright law. This is because mediums of expression for fixation may expand in relation to technological development.45 With regard to the digital revolution, the requirement of fixation when phrased in a closed way, appears to raise some complexity; it has been asserted that ideas are currently being expressed and disseminated electronically and that the concept of a ‘tangible format of expression’ may have mutated.46 Whichever way the requirement of fixation is phrased, it may pose challenges surrounding music and dance as art forms, and the problem has been succinctly depicted thuswhile copyright protection does arise once these works are fixed, the most persistent point is that it is immensely difficult to institutionalise experimental, experiential forms of music and dance, that is, to establish stable, predictable relations of production and circulation easily susceptible to fixation or policy intervention. The art forms were constantly evolving. From conception to realisation, there was continuous change in the ways in which the works were produced.47

From the foregoing, it may be surmised that the definition of fixation may have poignant consequences for performing authors, especially as it relates to the dynamic nature of technology. However, it may be

44 Section 1 (2) (b) Copyright Act 2004 (Nigeria). 45 Davis, J, Intellectual Property Law, op. cit., p 28. 46 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 501. 47 Waelde, C and Schlesinger, P, “Music and Dance: Beyond Copyright Text?” (2011)

8 (3) Script-ed, pp 257–291, p 260.

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wrongly imagined that other aspects of copyright law can mitigate problems for performing authors of musical works in the event of such occurrences. Therefore, the following sections consider the dilemma of performing authors in relation to the requirement of fixation, by assessing the sufficiency of performers’ rights in addressing this dilemma. They also discuss the authorship of sound recordings in relation to this issue, and the circumstances surrounding the negotiations that may determine its ownership and control. 6.3.1

The Insufficiency of Performers’ Rights

The performers’ rights available under some international instruments were highlighted and discussed earlier in this book.48 It was noted that while the Rome Convention and the TRIPS Agreement only provide performers the possibility of preventing the unauthorised fixation of their unfixed performances,49 the more recent WPPT and the Beijing Treaty grant performers exclusive rights to prevent same.50 From the foregoing, it may be assumed that situations whereby producers could unfairly claim copyright in performing authors’ musical creations on the basis of priority of fixation have been addressed by the law in these provisions.51 However upon closer analysis, it appears that these provisions may provide little or no relief for performing authors, as the exercise of either the ‘possibility’ or the ‘right’ to prevent fixation may not have far reaching solutions to the peculiar challenges performing authors may experience. As regards the grant of a possibility to prevent unauthorised fixation, it may be argued that the practical difficulties in restraining unauthorized fixation (recording) of a live performance may have informed the draftsman’s use of the word ‘possibility’. However, if this argument is accepted as the rationale behind the use of the word ‘possibility’ here, the extension of this argument should mean that the difficulty in enforcing copyright itself should also necessitate legislative reference to copyright as merely a suggestion of possibility and not a right. Another theory that may account for this wording is that the deliberations involved in the drafting of these

48 Supra, Sect. 1.8.4. 49 Article 7 (1) Rome Convention 1961; article 14 (1) TRIPS Agreement 1994. 50 Article 6 WPPT 1996; article 6 Beijing Treaty 2012. 51 Supra, Sect 6.2.2.

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instruments may have intended for the subject of performers’ rights to remain at the discretion of member states. Even in this instance, however, the mere suggestion of a right in an international treaty may not have compelling positive effects in the local enactments of member states. The effectiveness or otherwise of the grant of a positive performers’ ‘right’ to prevent unauthorised fixation is, perhaps, of greater concern here. This is because it appears that such provisions can, at best, assuage the grievances of the performer whose performance is utilised without permission, but provide no remedy for the authorial work that is thus misused. This is in view of the precarious position of performing authors in the time lapse between creation and fixation of their works.52 Accordingly, the right does not prevent others from unauthorised actions over the authorial work that is being performed, and performers present at a venue may unjustly adopt and fix another performer’s work as though they were the original authors. They may then re-perform and fix their own versions of the performance without the authorisation of the actual, original performing author. In this way, while the WPPT and the Beijing Treaty appear to have improved upon the provisions of the TRIPS Agreement by granting a positive express right, this right may be considered apposite for the prevention of bootleggers, but does not seem to have specific solutions for the conundrum of performing authors in relation to their creative autonomy. Problem: performers’ rights do not appear to be a viable solution for the protection of performing authors’ creative autonomy.

6.3.2

Authorship of Sound Recordings

As has been noted above, copyright law changes and develops in response to advancements in technology.53 For instance, modern copyright law was instituted partly in response to the economic challenges of copying 52 Supra, Sect. 6.2.1. 53 Supra, Sect. 6.3; Loren, LP, “Untangling the Web of Music Copyrights” (2003) 53

(1) Case Western Reserve Law Review, pp 673–721, p 679 and 687; Davis, J, Intellectual

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posed by the development of Gutenberg’s press,54 and sound recordings appear to have been added to the list of copyright works in the UK only after the introduction of sound recording technology in the late nineteenth century.55 Internationally, copyright in sound recordings was an initiative of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, which is known as the Rome Convention 1961.56 It has also been noted that copyright in sound recordings was lobbied for by performers and recording companies in response to technological developments in broadcasting and record duplication.57 It was officially introduced in the UK by the Copyright Act of 1911,58 and the provisions of the Act were consequently made applicable in Nigeria via an Order-in-Council, because of Nigeria’s erstwhile status as a protectorate of Britain.59 Sound recordings have been defined in the current Nigerian Copyright Act as ‘the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a sound track associated with a cinematograph film’.60 The scope of the right is also statutorily defined thusCopyright in a sound recording shall be the exclusive right to control in Nigeriaa. The direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording

Property Law, op. cit., p 35; Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 67. 54 Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 22. 55 Mulhaney-Clements, S, “The Impacts of the Differences Between UK and US

Copyright Laws for Sound Recordings on Musicians”, op. cit., pp 1390–1391. 56 Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 12. 57 Mulhaney-Clements, S, “The Impacts of the Differences Between UK and US

Copyright Laws for Sound Recordings on Musicians”, op. cit., p 1391. 58 Section 19 (1) Copyright Act 1911 (UK). 59 Order- in- Council No 192 of 1912, Section 28, Copyright Act 1911 (UK); Asein,

JO, Nigerian Copyright Law and Practice, op. cit., p 28; Shyllon F, Intellectual Property Law in Nigeria (Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, 2003), p 33. 60 Section 51 (1) Copyright Act 2004 (Nigeria).

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either in its original form or in any form recognizably derived from the original; b. The distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan, or similar arrangement.61 However, sound recordings have been described as a secondary work of copyright or as a ‘derivative work’ because of its reliance on musical works and literary works in order to exist.62 They have been termed as being ‘one of the most “uncreative” copyright works’,63 and it has been asserted thusThe “authors” of secondary works are typically the entrepreneurs who invest in their production. It is this investment, rather than any creative endeavor, that is primarily being protected by copyright.64

The complaint in this argument is consistent with the statutory provisions regarding the authorship and ownership of sound recordings in some common law jurisdictions. UK law, for instance, provides that the author of a sound recording shall be the producer,65 and this is similar to the following common law systems• Canadian copyright vests ownership of sound recordings in the “maker” of the recording, but does not go further to qualify the “maker” in relation to the probable collaborations with other copyright material, which sound recordings would involve66 ; • Australian copyright establishes ownership of sound recording copyrights in the “maker” of the sound recording, but establishes an equal sharing formula that acknowledges the rights of performers to

61 Section 7 (1) Copyright Act 2004 (Nigeria). 62 Davis, J, Intellectual Property Law, op. cit., p 34; Brooks, T, “Only in America: the

Unique Status of Sound Recordings under US Copyright Law and how it Threatens our Audio Heritage” (2009) 27 (2) American Music, pp 125–137, p 128. 63 Rahmatian, A, Copyright and Creativity: The Making of Property Rights in Creative Works, op. cit., p 145. 64 Davis, J, Intellectual Property Law, op. cit., p 35. 65 Section 9 (2) (aa) CDPA 1988 (UK). 66 Section 18 Copyright Act 1985 (Canada).

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sound recordings. However, it makes room for contractual arrangements to define ownership, and such negotiations may not benefit performing authors of musical works67 ; and • US federal copyright does not seem to specifically define who shall own the copyright in sound recordings, but a study noted that it is mostly owned by recording companies.68 Similarly, authors’ rights in Germany’s civil law system,69 vest exclusive reproduction and distribution of sound recording rights in the producer, and refers to the financial and logistic attributes of the producer’s role.70 Nevertheless, it does not use the word ‘author’ in relation to the creation of sound recordings. Considering that the role of the producer in the music industry has been described as the person or company ‘undertaking the necessary commercial arrangements for their creation’,71 it is consistent to argue that authorship of sound recordings in the laws of these countries is defined by commercial and logistic underpinnings, rather than creative contributions.72 Furthermore, the position of the law on the authorship of sound recordings of musical performances does not appear justifiable in consideration of the creative input of performing authors to the sound recording processes.73 In this regard, US Congress and case law appear to take cognisance of the collaborations involved in the making of sound recordings,74 as seen in the Systems XI case, where the court reiterated the position of Congress-

67 Section 97 Copyright Act 1968 (Australia); infra, Sect. 6.3.3. 68 The US Copyright Act 1976; Brooks, T, “Only in America: The Unique Status of

Sound Recordings Under US Copyright Law and How It Threatens Our Audio Heritage”, op. cit., p 128. 69 The system of authors’ rights in Germany is the civil law equivalent of common law copyright. 70 Article 85 (1) UrhG 1965 (amended 1998). 71 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 240; Davis,

J, Intellectual Property Law, op. cit., p 37; supra, Sect. 2.3.3. 72 Sterling, JAL, World Copyright Law, op. cit., p 319. 73 Davis, J, Intellectual Property Law, op. cit., p 38. 74 HH Rep No 94-1476, 94th Cong, 2nd Sess 56 (1976).

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The copyrightable elements of a sound recording will usually, though not always, involve “authorship” both on the part of the performers… and on the part of the record producer responsible for setting up the session, capturing and electronically processing the sounds, and compiling and editing them to make a final sound recording.75

This consideration of creative contributions in sound recordings under US law is also apparent in Nigerian copyright law. In Nigeria, the enactment of the 1988 Copyright Act was the result of the agitation and lobbying of creative industries, particularly featuring the repeated demands of the Performing Musicians Association of Nigeria (PMAN).76 This may account for the unique provisions on the authorship of sound recordings of musical performances“author” in the case of sound recording, means the person by whom the arrangements for the making of the sound recording were made, except that in the case of a sound recording of a musical work, “author” means the artist in whose name the recording was made, unless in either case the parties to the making of the sound recording, provide otherwise by contract.77

The provision of the Nigerian Act regarding authorship of sound recordings of musical performances thus, prima facie, appears to be in favour of the artist who may be referred to as the performer (and in certain instances may also be the author of the work).78 The law thus seems to appreciate the level of involvement that performing authors have in the recording process, and recognises the likelihood that they would have contributed significantly to the arrangements for the recording, sufficient for them to be deemed as authors of the recording. However, while the

75 Systems XI Inc v Parker 30 F Supp 2d 1225 (ND Cal 1998); JCW Investments v Novelty Inc 289 F Supp 2d 1023 (ND Ill 2003). 76 Sodipo, B and Fagbemi, B (eds), Nigeria’s Foreign Investment Laws and Intellec-

tual Property Rights (Intellectual Property Law Unit, Queen Mary & Westfield College, London, 1994) p 158 and p 178; Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 34. 77 Section 51 (1) par 6 Copyright Act C28, LFN 2004 (Nigeria). 78 ‘You should note that in Nigeria, the composer and performer of a work is often the

same person’ (11 July 2013) interview with Bankole Sodipo, op. cit.

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first part of this provision appears fair and justifiable for artists, it seems to fall flat with the proviso that recording contracts may stipulate otherwise. The operation of this proviso appears to blur the distinction between authorship and ownership of copyright in sound recordings and may have negative consequences particularly for performing authors’ creative autonomy, and also for their earning capacity. With regard to their earning capacity, by allowing contracts to decide the question of authorship of sound recordings, when recording companies have bargaining leverage, it may serve to hinder performing authors from receiving remuneration for the adaptation and performance of their works, and from beneficially negotiating recording contracts. It may also enable recording companies to dictate the recording process and alter the author’s creative autonomy over the style and vision for a song. The effect of this proviso on performing authors’ creative autonomy may thus be determined by the bargaining process between performing authors and record labels in the negotiation of recording contracts. In such negotiations, the party that prevails in the bargaining for the authorship of sound recording copyrights may be translated to a question of fact and may require an assessment of the nature of the relationship between performing authors and their producers.79 Problem: In practice, these words in Section 51 (1) par 6 Nigerian Copyright Act— ‘…unless in either case the parties to the making of the sound recording, provide otherwise by contract’— may negate the provisions of the first clause of the section. Recommendation: Legislative: legislative reform may delete the words above, and provide for performing authors’ ownership of copyright in sound recordings of their works.

6.3.3

The Bargaining for Sound Recording Rights

The nature of the producer’s role has been described in Chapter 2 of this book, and it was noted that although producers may work independently as small record labels, they may also become the bedrock for the supply of 79 Infra, Sect. 6.3.3.

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new music for larger recording companies.80 Independent producers may also be contracted for the purpose of a specific recording, by the mutual agreement of a recording company and a performing author.81 Such independent producers may only be responsible for the logistic elements of making sound recordings, and in such cases they may be paid a fixed fee for each project they undertake, or they may be paid royalties that are a percentage of the profit from the sale of the recording.82 Their creative influence over a recording may also be limited as they may not be able to enforce their preferences on a performing author.83 However, when producers work under the auspices of a record label as part of its structure, they may be able to wield considerable creative influence and executive veto over performing authors in recording processes. The data reported in Chapter 4 of this book showed that most performing authors in Nigeria were keen to secure recording contracts.84 It also showed that performing authors, for the most part, are not as well informed regarding copyright law as record label executives are.85 This lack of information coupled with the evident desire for recording contracts may therefore tilt the bargaining for sound recording rights in favour of producers and record labels. The bargaining imbalance may enable recording companies secure ownership of sound recording copyrights in their contracts with performing authors, and it may also strengthen their influence over performing authors’ creative expression. It has been suggested that the nature of collaborations between musicians, producers and sound engineers in the context of popular music alters the concept of authorship.86 However, juxtaposing the provision of recording technology and recording expertise by producers on one hand, with the vocal, musical and/or literary contributions of performing authors on the other hand, further shows the potential imbalance in the

80 Supra, Sect. 2.3.3. 81 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 211. 82 Ibid., p 212. 83 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 242. 84 Supra, Sects. 4.2.2 and 4.4; ‘it is still desirable for young musicians to obtain a

record contract’, Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 237. 85 Supra, Sect. 4.5. 86 Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 12; supra, Sect. 6.3.2.

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ownership of sound recordings. Where the performing author contributes the composition and lyrics of a song as well as the performance of the song, they thus account for the music and literary copyrights in addition to the performers’ rights in their performance of the work. Furthermore, as has been recognised by the Act, performing authors may be directly involved in the studio-recording processes. Considering these facts, it appears unjustifiable for producers and labels to be deemed as authors of sound recordings; a situation which may afford them a controlling influence on the creative output of performing authors. Even if some may argue that producers’ ownership of copyright in sound recordings is justified in their provision of recording technology and expertise, these same facts are capable of negating the creative autonomy of performing authors in the authorship and recording of their work. This may occur where, as was seen in Chapter 4 of this work,87 the producer or record label requires a certain style or genre of musical works from a performing author, and they are thus coerced into adhering to music trends as interpreted by their labels. It has been argued that this is not only a Nigerian phenomenon, but a problem for the music industry internationallyThe design of record contracts show that record companies do not think highly of aesthetic experiments by their musicians. They prefer artists to not deviate from a path that has proven to be commercially profitable.88

In this regard, the mere requirement of the label’s approval for a performing author’s choice of compositions to be recorded, may in itself be detrimental to creative autonomy, even though this is common. Where such situations become the norm in a demographic, the effects may be felt, not only by performing authors who experience the commercially influenced mutation of their expression, but also by society as a whole, with markets being flooded by similar or identical musical works which lack variety. It is clear that individual circumstances and bargaining power-play in the relationships between performing authors and their record labels may determine the ownership of sound recording copyrights in recording

87 Supra, Sect. 4.5. 88 Tschmuck, P, Creativity and Innovation in the Music Industry, op. cit., p 238.

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agreements, and the consequent fate of creative autonomy. The regulation of recording contracts, or lack thereof, under copyright law will be further discussed in this book.89

6.4 Ineffective Restrictions on the Transmission of Moral Rights Moral rights have been discussed earlier in this book and the distinction between such rights and creative autonomy was identified.90 However, the importance of moral rights has been argued on the basis of the notion that moral rights regimes ‘increase the quality-adjusted quantity of art’.91 Furthermore, it has been argued that when art has been honestly created, subsequently subjecting it to change at the discretion of a new owner is disrespectful to the individuality of the author and suppressive of their creative autonomy.92 It is considered as a system that ensures that the author enjoys “deserved” respect for the personal investment involved in their creative endeavours.93 In this regard, it has been opined that the desire to maintain the integrity of their authorship and art is the reason why certain creative people avoid mainstream commercial platforms, preferring to work on their own terms.94 Thus, the role of moral rights in preserving the integrity of authors’ creations may be considered as a copyright tool that can serve some form of protection for the creative autonomy of performing authors. 89 Infra, Chapter 8. 90 Supra, Sect. 5.3.4. 91 Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 276; however, it has been asserted that the absence or relatively silent presence of moral rights in federal copyright laws of the US has not led to a reduction in creative endeavour. In contrast to the civil law approach to inalienable moral rights, common law countries such as the United States appear to have had a less enthusiastic approach to moral rights. Thus, partly in objection to the provisions on moral rights in the Berne Convention, the United States did not become a signatory to the Convention until 1989, Hansmann, H and Santilli, M, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis” (1997) 26 (1) Journal of Legal Studies, pp 95–143, p 97. 92 Vetrone, AV, The Legal and Moral Rights of all Artists (iUniverse Inc, New York, Lincoln, et al., 2003), pp 8–9. 93 Waelde, C and De Souza, L, “Moral Rights and the Internet: Squaring the Circle” (2002) 3 Intellectual Property Quarterly, pp 265–288, p 266. 94 Vetrone, AV, The Legal and Moral Rights of All Artists, op. cit., p 9.

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However, moral rights provisions do not necessarily ipso facto serve the protection that performing authors seek for their authorial integrity. Despite the fact that the Nigerian copyright law provides for the perpetuity and inalienability of moral rights in what appears to be the protection of authorial individuality,95 its effectiveness is hinged on the fact that moral rights are rights that have to be asserted, as opposed to duties or responsibilities owed to an owner. They are rights that must therefore be claimed in order to be enforced. Accordingly because of the wording of the Act which accords the rights ‘to claim authorship…’96 and ‘to object and to seek relief…’,97 it has been argued that the Act does not accord a positive right, but merely a right of claim.98 Thus, while the law restricts the contractual transmission of moral rights, with the exception of transmission to heirs,99 the rights may be waived or relinquished. To make matters more complicated, there is no express provision restricting contractual relinquishment of moral rights. In an incident which was reported by a number of Nigerian entertainment news blogs, a popular Nigerian artist, Davido, released a song titled ‘Gobe’ that was widely regarded as originally by him.100 However, it was later reported that Davido had paid the original author, Password, for a licence to cover his song in a private deal.101 Not knowing of their private

95 Section 12 (2) Copyright Act 2004 (Nigeria). 96 Section 12 (1) (a) Copyright Act 2004 (Nigeria). 97 Section 12 (1) (b) Copyright Act 2004 (Nigeria). 98 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 242. 99 Section 12 (3) Copyright Act 2004 (Nigeria). 100 Okodugha, P, “411 Lyrics: Davido- Gobe” (11 March 2013) available at http://www.411vibes.com/411-lyrics-davido-gobe/ (accessed 22 April 2013); Onos, O, “New Video: Davido- Gobe” (26 February 2013) available at http://www.bellanaija.com/2013/02/26/new-video-davido-gobe/ (accessed 22 April 2013); Oduok, U, “You Decide! Did Davido Rip Off Password’s ‘GOBE’ Song -Davido Accused of Copyright Infringement” (26 February 2013) available at http://africamusiclaw.com/2013/02/you-decide-did-davido-rip-off-passwordsgobe-song-davido-accused-of-copyright-infringement.html (accessed 22 April 2013). “‘Gobe’ by Davido (Official Video)—Best Song so Far”, available at http://www.nig erianbusinesslinks.com/nigerianmovies/gobe-by-davido-official-video/ (accessed 22 April 2013). 101 Tolu, “Davido Bought Off His New Single, Gobe For N500,000” (1 March 2013) Information Nigeria, available at http://www.informationng.com/2013/03/davido-bou ght-off-his-new-single-gobe-for-n500000.html (accessed 22 April 2013).

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arrangement, and seeing the similarity of both songs,102 several entertainment blogs raised questions about copyright infringement when they discovered Password’s version which had been released on the internet two years prior to Davido’s version.103 The situation gave rise to insinuations in the media about the infringement of economic rights, but concerns for moral rights were not popularly expressed. Provided that the legally required permissions are obtained, and the author is duly attributed for their authorship, the performance of a song authored by a different individual does not necessarily constitute an infringement of an author’s moral rights or copyright. However, the relevant question for the purpose of this subchapter, is whether there was attribution of authorship here. Without knowing the facts, it is possible that Password did not assert his moral rights in the song ab initio. It is also possible that the payment for a licence to cover the song had included payment for Password to waive his moral rights in relation to the song. The problem here is that, if financial remuneration for a licence to record a song is considered sufficient grounds for non-attribution, then the provision for the ‘inalienability’ of moral rights under Nigerian copyright law may accomplish nothing. Of further concern is the assertion that such occurrences are common in the Nigerian popular music industry.104 Therefore, this situation suggests that the purpose of moral rights in protecting the integrity and individuality of authors’ creations, and in this case the performing author, may be undermined by the possibilities available for waiving them. It will thus be in the interest of authorship for the law to expressly proscribe the practice of waiving moral rights for financial remuneration. To further complicate the issue, converting moral rights to a duty may also rob the author of their independence in determining the fate of their

102 FNN, “What Do You Think, Did Davido Buy or Steal GOBE?” (27 February 2013) available at http://fake9janews.com/whatdoyouthink-did-davido-buy-or-steal-gob e-2/ (accessed 22 April 2013). 103 Segun, O, “Scandal: Davido Accused of ‘Stealing’ His New Track, Gobe” (26 February 2013) available at http://www.36ng.com.ng/2013/02/26/scandal-davido-acc used-of-stealing-his-new-track-gobe/ (accessed 22 April 2013). 104 “I noticed it doesn’t sound very new to me, but that’s normal…. This case is not new in the music industry….”, Segun, O, “Scandal: Davido accused of ‘stealing’ his new track, Gobe”, op. cit.

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works. However, the phrasing of moral rights as positive rights would still be more beneficial for performing authors. Problem: When moral rights require distinct assertion (separate from copyright assertion) in order to be enjoyed, challenges to performing authors’ creative autonomy may ensue. Recommendation: Legislative: moral rights may be rephrased as positive rights, and waiving moral rights for payments in cash or kind should be categorically prohibited.

6.5

Conclusion

Having observed that creative autonomy is a visible thread in both deontological and consequentialist theories on copyright law,105 this chapter analysed elements of copyright law that do not align with its theoretical goal of prioritising creative autonomy for authors. It identified problems that may occur for the performing author before fixation and because of fixation, and it depicted the inability of moral rights to address such problems for performing authors in the context of business interactions. The next chapter will explore new business platforms in the music industry, and will analyse the ways in which such business platforms may hinder the exercise of creative autonomy for performing authors.

105 Supra, Chapter 5.

CHAPTER 7

Problems for Creative Autonomy in New Business Models

7.1 Introduction: New Music Platforms as Opportunities or Threats to Creative Autonomy The previous chapter analysed threats to the creative autonomy of performing authors that may be occasioned through certain provisions and lacuna within copyright law. It also showed that the dynamic nature of technology and business in the creative industries have made it necessary for copyright law to continue evolving, as a result of which, gaps between business and the law could cause practical challenges for performing authors and their creative autonomy. This chapter identifies some relatively new business practices and platforms that have become popular in the twenty-first century, and analyses their effects on the creative autonomy of performing authors. Amendments in copyright law were made as a result of the introduction of sound recording technology in the early twentieth century,1 but the advent of newer technology since then, has altered the effectiveness of the business models previously employed in the recording industry,2 in ways that impact both business and law. It has been argued that business

1 Supra, Sect. 6.3.2. 2 Davis, J, Intellectual Property Law, op. cit., p 68.

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models should be tailored towards music and not vice versa.3 However, it appears that these modern technological developments may have altered the way in which recording companies scout for talent, as well as the ways in which performing authors seek record deals,4 resulting in business models that can dictate music trends and undermine the creative autonomy of performing authors. One of such business models is the use of televised talent competitions to scout for new performers.5 The essential formats for many of these shows, such as Pop Idol which was designed by former A&R manager Simon Fuller, thrive on the participation of regular people who compete against each other for positive reviews from the shows’ judges and the viewers’ votes in order to clinch the winner’s title.6 These shows may create celebrity status for the winners and some of the contestants, and may serve as a commercial springboard for music projects and careers, thus constituting a cultural phenomenon.7 The format has been syndicated in many countries around the world including Nigeria, where, for instance, the winner of the third season of the ‘Nigerian Idol’ franchise launched a career to popular acclaim.8 Moreover, there have been other reality television shows with similar formats in Nigeria, such as ‘Glo Naija Sings’9 and “MTN Project Fame West Africa”,10 which are open to

3 Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 5. 4 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op.

cit., p 82. 5 Infra, Sect. 7.2. 6 Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of

Stardom in Pop Idol” (2004) 5 Television and New Media, pp 147–172, pp 148–150. 7 Ibid., p 150. 8 Ibid., p 150; http://nigerianidol.com/about_show.php (accessed 8 May 2013); Aiki,

D, “Nigerian Idol Season 3 Winner Moses Obi-Adigwe Releases 3 Singles! ‘Love in the Air’, ‘Number One’ & ‘Love Letter’ Feat. Eva Alordiah” (August 16, 2013) available at http://www.bellanaija.com/2013/08/16/nigerian-idol-season-3-winner-moses-obi-adi gwe-releases-3-singles-love-in-the-air-number-one-love-letter-feat-eva-alordiah/ (accessed 26 February 2020). 9 ‘Glo Naija Sings’ was a show officially sponsored by Globacom, a Nigerian telecommunications company, http://www.gloworld.com/sponsor_naijasings.asp (accessed 8 May 2013). 10 “MTN Project Fame West Africa”, information available at http://www.projectfamew estafrica.com/ (accessed 8 May 2013).

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Nigerian contestants and are aired on Nigerian television.11 The web of interactions between record labels and other sponsoring companies may introduce further dynamics to the creative autonomy of performing authors. However, this issue does not fall within the primary concern of this book, and it will not be considered in further detail. This chapter will consider three platforms on which music business is conducted, which appear to have become increasingly popular. It will consider the following in relation to their effects on the creative autonomy of performing authors-12 • the use of television talent competitions in the selection of performing authors; • the role of the internet in performing authors’ efforts to secure recording contracts and • the growing popularity of the use of multiple rights deals.13

7.2

Television Talent Competitions

From the early days of the interaction between music and television broadcasting, reporters and analysts had predicted the consequent development of new art.14 One of the effects of this interaction was that it imposed anxieties about physical appearance on performers,15 and this subchapter shows how the modern trends in television talent competitions have magnified such anxieties at the expense of creative autonomy. Allusions to such possibilities have been made in the observation that

11 With more of such competitions being established, albeit for varying numbers of active seasons, there was also a Gospel show with a similar format known as “Destiny Child”, http://www.destinychild.com.ng/features-columns.html (accessed 8 May 2013). 12 The first two platforms discussed here may be most evident in the practices of recording companies during the ‘pre-contract’ stages of their relationship with performing authors. 13 It appears that the type of recording contracts that are typically used in current times

may have also changed in favour of multiple rights’ deals. The legality of some of the elements of recording contracts and contractual practices will be discussed in further detail in the next chapter of this book, infra, Chapter 8. 14 Negus, K, “Musicians on Television: Visible, Audible and Ignored” (2006) 131 (2) Journal of the Royal Music Association, pp 310–330, p 313. 15 Ibid., p 318.

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there are ‘many ways in which music is related to practices and beliefs about visual culture and ways of seeing’.16 Popular music is commercially centred on the creation of iconic individuals and hit songs, thus performing authors as well as their music may be referred to in the popular music industry as ‘product’.17 In this regard, it has been argued that the “product-image” orientation of the music industry, as evidenced by their activities and their language, has served to consolidate the prioritising of commercial values over artistic values.18 This notion may be derived from the practices of recording companies in their selection of performing authors, and in the whittling down of proposals that they receive in their search for prospective commercially successful songs.19 A&R agents in recording companies and music publishing companies have been traditionally saddled with the responsibility of discovering new talent for the industry.20 Accordingly, it has been noted that in fulfilment of this role, they have typically endeavoured to stay conversant with emerging trends in the music industry and the preferences of music fans by attending local clubs, open-microphone events, and ‘reviewing recordings submitted to the company by outside sources’.21 In fulfilling the responsibility of discovering new talent, the music industry also appears to rely on partnerships with the television industry. It has been argued that while television is not essential to music, it has become an essential aspect of music business around the world.22 The 16 Ibid., p 311. 17 Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 99. 18 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 4 and p

74. 19 Ibid., p 72. 20 Supra, Sect. 2.3.1.1; Tschmuck, P, Creativity and Innovation in the Music Industry,

op. cit., p 231; it has been argued that in contemporary business models the independent producer currently satisfies this role by discovering performing authors and creating master recordings which are traded to recording companies, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 47; however the role of discovering and promoting talent is still central to the music industry and the office responsible for the role may not necessarily alter its functions. 21 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 21; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 82. 22 Frith, S, “Look! Hear! The Uneasy Relationship of Music and Television” (2002) 21 (3) Popular Music, pp 277–290, p 277.

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use of music in broadcasts and televised music chart shows have been discussed in academic circles since the 1980s,23 but what appears to be an increasingly popular phenomenon, is the sensation of reality television singing competitions such as the ‘X Factor’ and ‘Idol’ franchises.24 It has been argued that in its very essence, the formats designed for such television talent competitions have blurred the distinction between the cultural notion of stardom and the artistic value of popular music.25 It has also been asserted that the names of programmes, such as ‘X Factor’, ‘Pop Stars’ and ‘Pop Idol’, ‘aim to place the entire concept of stardom at centre stage. In doing so, they self-consciously articulate ideologies surrounding the construction of stardom’.26 Holmes further describes such television shows as ‘the exposition of the internal workings of the music industry and, crucially, its manufacture of celebrity and stardom’.27 For the performing author who contests in such shows while searching for cultural relevance, it should be noted that the focus of such shows appears geared towards the concept of stardom, and their formats appear to be more directed towards performance than authorship and selfexpression.28 Furthermore, in the various stages through which contestants progress in such shows, it appears that the concept of stardom is not solely determined by vocal performance. Rather, it entails such factors as physical appearance, dressing, image, dance and miscellaneous factors, some of which may be difficult to predetermine, and have been described as ‘speculative forecasting’.29 In speculative forecasting,

23 Ibid., p 278. 24 The Nigerian versions of such shows have been referred to, supra, Sect. 7.1. 25 Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of

Stardom in Pop Idol”, op. cit., p 148; “Plan B Hits Out at Simon Cowell and X Factor: ‘Their Work Goes into Their Image’” (2012) available at http://uk.omg.yahoo.com/ news/plan-b-hits-simon-cowell-x-factor-work-132327418.html. 26 Holmes, S, “‘Reality Goes Pop!’: Reality TV, Popular Music, and Narratives of Stardom in Pop Idol”, op. cit., p 148 and p 149. 27 Ibid., p 149. 28 The concerns of performing authors as it regards authorship and performance of

their works was introduced earlier in this book, supra, Sects. 1.2.2 and 4.2. 29 “Pros and Cons of TV Talent Shows”, available at http://www.vocalist.org.uk/tv_tal ent_shows.html (accessed 26 February 2020); the business of recording companies is said to involve commercial speculation for music as well as for artists, Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 99.

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it has been argued that although recording companies may be reasonably correct in their commercial forecasts for the projects of established artists, the dynamics are much less clear for new artists.30 Therefore, in using such shows as a forecast to select new musical talent, recording companies may be erroneously depending on the popularity achieved from television exposure as a means to reduce the risks associated with signing new artists.31 Such forecasting may not serve as a useful prediction, and may inevitably limit performing authors from exercising their creative autonomy in two ways, as shown below. Firstly, such shows seem to assume that contestants who do not fit the physical characteristics and other unarticulated attributes that may constitute the notion of stardom, do not have performing or authorial skills that could be popularly and commercially reckoned with. As such, performing authors without the requisite physical appearance may be summarily disqualified. Secondly, the experiences of some prominent winners of such shows around the world, who have subsequently left or been dropped by their record labels over differences in creative direction, appear to hint at the problems for performing authors who progress in such shows.32 With regard to their creative choices, for those who were able to adapt their skills to suit the requirements of the judges and viewers and thus become successful on such shows, they may later find the inability to express their creative autonomy overwhelming and uncomfortable.33 Thus, even if winning such shows may result in automatically securing a recording

30 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 73. 31 Ibid. 32 “X Factor Curse Hits Matt Cardle”, available at https://www.thesun.co.uk/arc hives/news/634406/x-factor-curse-hits-matt-cardle/ (accessed 26 February 2020); “Will Going on a Reality TV Music Shows Help Your Music Career?” available at http:// themusicbusinessbible.com/will-going-on-the-x-factor-help-your-music-career (accessed 26 February 2020) Corner, L, “Rebecca Ferguson: ‘I Told Simon Cowell I Was Writing My Album Heaven’” (2011) available at http://www.digitalspy.co.uk/music/news/a351160/ rebecca-ferguson-i-told-simon-cowell-i-was-writing-my-album-heaven.html (accessed 16 February 2020); “Leona Lewis Quits Simon Cowell’s Syco Record Label” (4 June 2014) BBC Newsbeat, available at http://www.bbc.co.uk/newsbeat/27693043 (accessed 16 February 2020). 33 Nixon, T, “Matt Cardle: I Looked a Right Idiot on X Factor” (October 14, 2011) The Sun, available at https://www.thesun.co.uk/archives/news/838418/matt-cardle-i-loo ked-a-right-idiot-on-x-factor/ (accessed 26 February 2020).

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contract, such recording contracts may impose particular hardship on the burgeoning career of a performing author.34 It appears that while runners up may also encounter threats to their creative autonomy in their transition to the next phase of their careers,35 the creative autonomy of first and second runners up in such competitions may be more secure than that of the winner. They may be in better positions to negotiate recording contracts that are more suited to the maintenance of their creative autonomy, because their recording contracts may not have been automatically generated in the way that the winner’s contract may have been.36 On the Nigerian scene, Iyanya, the 2010 winner of Glo Naija Sings,37 famously stated that after winning the show, he subsequently had to alter his authorial and performance style in order to meet market trends.38 Having attempted and failed at continuing his career with his preferred genre of Rhythm and Blues, he admitted to reluctantly make a decision to switch to the more popular genre of Afro-Pop with the aim of gaining a bigger followership.39 On the other hand, Timi Dakolo, winner of the first season of ‘Idols West Africa’, admitted that though there was pressure in the music industry to commercially adjust his creative direction and conform to musical trends, he maintained his decision to stick to the genre he felt

34 Infra, Chapter 8. 35 Corner, L, “Rebecca Ferguson: ‘I Told Simon Cowell I Was Writing My Album

Heaven’”, op. cit. 36 Supra, Sect. 6.3.3. 37 Supra, Sect. 7.1. 38 “Interview with Iyanya”, available at http://www.netnaija.com/forum/2141/readthis-touching-interview-with-iyanya.html (accessed 20 January 2013); Awojulugbe, O, “Iyanya: My RnB Songs Were Going Nowhere, So I Switched” (23 August, 2016) The Cable, available at https://lifestyle.thecable.ng/iyanya-my-rnb-songs-switched/ (accessed 20 January 2020). 39 Ibid.

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more comfortable in.40 It was reported that Christine also had this experience when she won ‘Nokia First Chance’, a similar talent competition.41 It is instructive to note that some of these television competition shows do not run for multiple seasons, and examples of performing authors in such conundrums, though popular, may be few. Some may argue that popular music, by virtue of having targeted audiences, is driven by formulas and formats, and that music industry practices such as television contests should simply be viewed as harmless recreation. It may also be argued that such shows offer public exposure to burgeoning performing authors that may result in successful music careers. Nevertheless, it has been observed in the Nigerian music industry that such success or even just the potential for it, can involve tradeoffs with creative autonomy, which some performing authors may not be willing to make.42 As Frith notes, the interaction between television and music does not commonly result in further innovation for performing authors. 43

7.3 The Internet as an Aid or Hurdle for Performing Authors Recording companies argued that developments in the digitisation of music and the use of the internet negatively affected the sale of records and necessitated an adjustment of the business methods used in the

40 Jasanya, O, “Timi Dakolo Exclusive: ‘Reality Shows Come with a Lot of Pressure’” (2012) The Net, available at http://thenetng.com/2012/12/timi-dakolo-exclusive-rea lity-shows-come-with-a-lot-of-pressure/ (accessed 9 February 2013); Porbeni, B, “Timi Dakolo: Ten Years After Idols” (15 October, 2017) The Guardian Nigeria, available at https://guardian.ng/life/on-the-cover/timi-dakolo-ten-years-after-idols/ (accessed 29 January 2020). 41 Halim, K, “My First Time on Stage Was a Punishment-Christine, Winner, Nokia First Chance Reality Show, 2007” (May 20, 2011) available at http://www.nigeriafilms. com/news/11801/21/my-first-time-on-stage-was-a-punishment-christine-.html (accessed 9 February 2013). 42 Jasanya, O, “Timi Dakolo Exclusive: ‘Reality Shows Come with a Lot of Pressure’”, op. cit. 43 Frith, S, “Live Music Matters” (2007) 1 (1) Scottish Music Review, pp 1–17, p 8; Akinyele, K, “Nigerian Musical Reality TV Shows Are Nothing But Creativity Killing Shows!” (2012) available at http://blog.playmyjamz.com/?p=35 (accessed 9 February 2013).

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popular music industry.44 Accordingly, they vociferously criticised practices like music file sharing,45 lobbied national governments for legislative solutions and partnered with internet service providers in efforts to address the issue of file sharing.46 They also engaged in researching and promoting ways in which interactions on the internet and cloud computing sites such as YouTube could be made profitable for music owners.47 While the digital revolution may have enabled unauthorised access to musical works via the internet, it has been asserted that this view detracts focus on the divergent interests of performing authors and recording companies.48 This may be because performing authors have been observed to be more keen on self-expression and propagating their expression, while record labels are more keen on making a profit.49 Despite its criticisms of the effects of digitisation, the music industry also adjusted some of its business methods in attempts to benefit from the widespread use of the internet,50 particularly with regard to record

44 IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 3 and p 18; it has been noted that ‘information in digitised form of pictures, text, music, photographs can all be seamlessly disseminated from one side of the globe to the other. There is (almost) nothing to stop these works from being uploaded, made available, communicated, distributed and finally downloaded anywhere in the world’, Waelde, C and De Souza, L, “Moral Rights and the Internet: Squaring the Circle”, op. cit., p 265. 45 “Music and the Internet: A Guide for Parents and Teachers”, available at http:// ifpi.org/content/library/Childnet-International.pdf (accessed 12 February 2013); IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information, op. cit., p 19. 46 Edwards, L, “The Fall and Rise of Intermediary Liability Online”, in Edwards, L and Waelde, C (eds), Law and the Internet, op. cit., pp 81–83. 47 “IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music Market Information”, op. cit., p 3 and p 19; “IFPI Digital Music Report 2013: Engine of a Digital World”, op.cit. p 5; after years of downward trends, the IFPI reports four consecutive years of growth with significant revenue from digital sales and streaming, “IFPI Global Music Report 2019: State of the Industry”, available at https://www.ifpi. org/news/IFPI-GLOBAL-MUSIC-REPORT-2019, op. cit., pp 12–13. 48 Podlas, K, “The Moral of the Story…Musical Artists Must Protect Their Own Rights in Digital Music” (2010) 10 (3) Wake Forest Intellectual Property Law Journal, pp 265– 288, pp 270–271. 49 Supra, Sect. 4.5.2. 50 IFPI, Recording Industry in Numbers, 2007: The Definitive Source of Global Music

Market Information, op. cit., p 19.

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labels’ methods of selecting new performing authors.51 In this regard, it has been argued thatDe-regulation and the new digital technologies changed the mission of the music business. The sudden multiplication of media channels combined with cheaper, more flexible means of producing, manipulating and integrating musical material into new contexts (such as music TV, video games and advertising) led to a shift in revenues from physical distribution to immaterial performance rights. A wider, simultaneous presence in global markets imposed further constraints to find instant ‘synergies’ across the activities of a media group. The image of the artist increasingly suppressed any musical aspirations.52

Thus, while some performing authors may upload recordings of their work on platforms such as Soundcloud and YouTube in the hope of being discovered by recording companies, record labels may take advantage of the practice and use it as a commercial forecasting tool, by requiring new performing authors to independently garner some publicity before signing them on.53 This practice appears to be consistent with the assertion that ‘record labels are unwilling to invest in unproven artists’.54 Consequently, it may be difficult for performing authors without a significant internet following to gain entry into the music industry. This may explain Kretschmer’s observations from interviews with some record label executives who were quoted thusThe purpose of a major music company now is not to sell records, but to develop artists. Developing artists means investing money to create a brand. (Director new media, multinational)

51 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 82. 52 Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in

Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates”, op. cit., p 175. 53 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 83. 54 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 142; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 83.

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Attitude is more important than music. (A&R executive, multinational) Pop is anything that sells. (Chairman, multinational)55

The use of the internet as a commercial forecasting tool to vet the commercial viability of performing authors can have negative effects on their creative autonomy in two ways. Firstly, the audiovisual properties entailed in using websites like YouTube to generate an online following, may constitute a hurdle similar to television talent competitions discussed earlier,56 where performing authors have to appeal to the visual and stardom sensibilities of their audience. Secondly, some performing authors may be talented in their art, but may not possess the skills and resources to engage in the dynamics of internet campaigns.57 Thus, when the internet is used in this way by record labels, the inability of some performing authors to conduct internet-based audience campaigns may effectively bar them from the opportunity of a recording contract and may stifle their authorial voice. It is therefore clear that the internet can be wielded as a tool that hinders performing authors from access to recording contracts, and it can manipulate their creative autonomy, forcing them to conform to a commercial ideal. Although access to the internet offers limitless commercial opportunities, and it has been suggested that performing authors may now use it as a platform to launch independent music careers,58 independent performing authors in the Nigerian popular music industry may fare differently from their counter-parts in more developed countries.59 In the Nigerian context, unequal wealth distribution, high transaction costs and infrastructure deficits may limit access to computing and internet technology, which may hamper a performing author’s ability to independently promote music careers.60 Moreover the challenge of erratic electricity

55 Kretschmer, M, et al., “The Changing Location of Intellectual Property Rights in

Music: A Study of Music Publishers, Collecting Societies and Media Conglomerates’, op. cit., p 175. 56 Supra, Sect. 7.2. 57 “IFPI Digital Music Report 2013: Engine of a Digital World”, op. cit., pp 18–21. 58 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 2. 59 Waje’s experience is cited as an example of such potential difficulty, Gani, MW, “Negotiating Like a Diva: Preserving Creative Autonomy in the Music Industry” (2019) 3 Wolverhampton Law Journal, pp 37–47, p 43. 60 Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p

49.

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supply in Nigeria may hinder the independent performing author who seeks to employ this means.61

7.4 The Nature and Effects of Multiple Rights ‘360’ Deals Although multiple rights deals were observed in the industry as early as the 1950s,62 since the advent of digital music and file sharing, it has been argued that the revenue from record sales significantly diminished, thus creating a need for recording companies to reconsider and recalibrate their business models.63 It therefore became increasingly popular for recording companies to offer multiple rights mega deals that covered more aspects of popular music and culture, than purely record sales.64 In Nigeria, the development of popular music in the twentyfirst century reflects the popularity of this business model, largely because of the institutional difficulty in tracking and obtaining sales figures for recordings.65 Under typical 360 deals, in addition to sound recording rights, recording companies may try to obtain some or all of a performing author’s publishing rights in their musical works.66 Furthermore, recording companies may set their sights beyond recording and 61 Forchu, II,“Nigerian Popular Music: Its Problems and Prospects in Development” (2011) 10 (2) Unizik Journal of Arts and Humanities, pp 103–114, p 110; Olokuton, A, “The State and Prospects for the Music Industry in Africa”, op. cit., p 52. 62 Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”

(2011) 3 (4) Landslide, pp 1–6, p 1. 63 ‘In a nutshell, the new music industry dynamics is characterized by high connectivity and little control’, and Wikstrom further argues that this has altered the ability of recording companies to control the flow of information; Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., pp 6–8. 64 Burnett, R, The Global Jukebox; The International Music Industry, op. cit., p 23; Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op. cit., p 155; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 177. 65 Supra, Sect. 3.3. 66 In addition to the existence of royalty sharing formulas for the use of mechanical

licences and the sale of records in recording contracts, it has been noted that recording companies often obtain publishing rights from performing authors without furnishing specific consideration beyond the royalty sharing formula. It may be noted that this practice violates the foundational principle of consideration in contract law; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 191 and p 194; Shemel, S and Krasilovsky,

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publishing, and also seek to obtain rights to share in the profits of any other ventures the performing author is involved in.67 Such other ventures may include merchandise, touring and live performances, biographies and book publishing, endorsements, sponsorship and licensing.68 Recording contracts which extend the relationship between performing authors and recording companies beyond the scope of record sales to the inclusion of other business ventures of the performing author, may be referred to as multiple rights deals.69 In industry terms, they are often referred to as 360 deals, and they are so-called because they typically encompass all the business endeavours of the performing author, or as many as the recording company can secure.70 It is now very commonly seen in contracts for both younger performing authors and for established acts, where recording companies require them to sign multiple rights deals,71 and in such relationships, the recording company’s drive to succeed may therefore extend beyond the sale of music albums and singles, in order to maximise their opportunities.72 It has been argued that the music industry has transitioned from dealing in music as a product, to dealing with music as a ‘service’ which is, ‘increasingly bundled with other services….where the consumer experience is the mainspring’.73 Accordingly, where the markers of success extend beyond the scope of music sales, the efforts and activities of MW, This Business of Music, op. cit., p 18; this issue will be discussed further, infra, Sect. 8.4.1. 67 Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 1; Bouton, D, “The Music Industry in Flux: Are 360 Record Deals the Saving Grace or the Coup de Grace?” (2009) 9 (2) Virginia Sports and Entertainment Law Journal, pp 312–322, p 318. 68 Ibid., p 318. 69 Pitt, IL, Economic Analysis of Music Copyright: Income, Media and Performances, op.

cit., p 155. 70 “360-Degree Deals—A Label Perspective”, available at http://www.creativelaw.eu/ blog/2011/07/360-degree-deals-%E2%80%93-a-label-perspective/ (accessed 15 March 2013); Passman, DS, All You Need to Know About the Music Business (7th ed, Penguin Books, London, New York, 2011), p 103. 71 Ibid., p 102. 72 Negus, K, Producing Pop: Culture and Conflict in the Popular Music Industry, op.

cit., p 1. 73 Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry” (2011) 3 (4) Landslide, pp 1–6, p 1.

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recording companies may be hinged on the creation of symbols of mass culture which may encompass fashion, food, events, politics and consumer products. In such cases, recording companies are generally believed to assume the larger share of risk,74 and where multiple rights deals are allowed to flourish, the creative autonomy of performing authors may no longer be a factor of concern for recording companies.75 For, when recording companies bear the larger risk in their contractual relationships with performing authors, there appears to be a corresponding reduction in the creative autonomy performing authors are able to exercise.76 Indeed, the goal of recording companies in such business ventures appears to be the creation of commercially sustainable cultural products, rather than simply music. With regard to the challenges imposed by such contracts on performing authors’ creative autonomy, some may argue that on the basis of the principle of freedom of contract, the prerogative of performing authors to engage in such multiple rights deals should not be proscribed.77 It may also be argued that complaints and concerns arising from contracts do not fall directly within the ambit of copyright law.78 However, it has been asserted that …freedom of contract must mean different things for different types of contracts. Its meaning must change with the social importance of the type of contract and with the degree of monopoly enjoyed by the author of the standardized contract.79

74 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 140. 75 The data in Sect. 4.1 of this book shows that creative autonomy is not as big a

concern for record labels in Nigeria, as it is a concern for performing authors; accordingly, it has been argued that business models should be designed to fit music, rather than music being modified to suit business trends, Gervais, DJ, Marcus, KM, et al., “The Rise of 360 Deals in the Music Industry”, op. cit., p 5. 76 Wikstrom, P, The Music Industry: Music in the Cloud, op. cit., p 141. 77 Kessler, F, “Contracts of Adhesion—Some Thoughts About Freedom of Contract”

(1943) 43 (5) Columbia Law Review, pp 629–642, p 630. 78 Problematic elements in recording contracts will be discussed in further detail, infra, Chapter 8. 79 Kessler, F, “Contracts of Adhesion—Some Thoughts About Freedom of Contract”, op. cit., p 642.

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Following this assertion, the degree of monopoly exercised by recording companies in multiple rights deals with performing authors should therefore be an important consideration in the determining the limits and extents of ‘freedom of contract’ in copyright exploitation contracts. Accordingly, Nigerian copyright law already places certain restrictions on the transmission of copyright,80 possibly in consideration for the fragile position of performing authors in their contractual negotiations with recording companies. Authors’ lobbying groups may also campaign for restrictions on multiple rights deals to be included in copyright amendments, in the interest of fairness. Some deals have been described as unconscionable with regard to the hardships they may cause to performing authors when included in contracts as a non-negotiable feature.81 Furthermore, leaving its regulation to case law may cause further hardship for new and burgeoning performing authors in the possible event of litigation, because the financial and time implications of legislation may be costly for a performing author, with significant effects on their career prospects. From the foregoing, with regard to the Nigerian popular music industry, it is in the interest of creative autonomy and public policy, for copyright law to proscribe, or at least regulate, the signing of multiple rights deals. To satisfy the concerns about freedom to contract, it may be beneficial for the law to require evidence of negotiation between parties in 360 deals, and proof that the weaker party had obtained legal advice before the execution of the contract.

7.5

Conclusion

Following the observations from performing authors in Chapter 4 of this book,82 this chapter set out to identify problems for the creative autonomy of performing authors which may be occasioned by business

80 Section 11 Copyright Act 2004 (Nigeria). 81 Bouton, D, “The Music Industry in Flux: Are 360 Record Deals the Saving Grace

or the Coup de Grace?” op. cit., p 319; this corresponds with Bagehot’s analysis of fairness in recording contracts and this practice thus appears to be an exercise of unequal bargaining power, Bagehot, R, “Star or Slave? Holly Johnson Revisited”, op. cit., p 16; supra, Sect. 6.3.3; unfair bargaining terms will be discussed in the following chapter, infra, Sect. 8.4. 82 Supra, Chapter 4.

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practices and music platforms in the music industry. It noted that with the advent of digital technology, there have been modifications of business practices in the music industry globally towards securing profit. This chapter analysed the concern that modern practices, like the use of television talent competitions and the internet for discovering performing authors, may influence the performing author’s creative choices by the addition of visual and esoteric appeal to musical criteria. It was noted that multiple rights deals also appear to have potentially negative effects on the creative autonomy of performing authors, where recording companies are more inclined towards using the performing author as a brand icon for multiple business ventures instead of the promotion of their music. While the subject matter of contracts was not discussed in great detail here, in view of the foregoing anomalies, the next chapter of this book will consider elements and clauses in recording contracts that may be detrimental to the creative autonomy of performing authors.

CHAPTER 8

Problems for Creative Autonomy in Recording Contracts

8.1

Introduction

Chapter 4 of this book noted that issues affecting the creative autonomy of performing authors can be broadly categorised under the headings of copyright law and contracts. It also identified the potential for business practices and platforms in the music industry to have negative effects on performing authors, and such practices were analysed in the preceding chapter. This chapter identifies common elements and clauses in recording contracts that may be deleterious to performing authors’ creative autonomy, and analyses the enforceability of such terms under the law. In the process of utilising the rights conferred by copyright law, contractual dealings over such rights may ensue, and contracts may take the form of licences and assignments.1 In analysing the nature and effects of contracting around copyright, it has been asserted that ‘contracts influence the copyright balance in a number of ways, affecting the authorial process and the relationship between authors, publishers and the public’.2 Notwithstanding the existence of principles like ‘freedom of contract’ and

1 Griffin, J, “The Interface between Copyright and Contract: Suggestions for the Future” (2011) 2 (1) European Journal of Law and Technology, pp 1–13, p 1. 2 Ibid., p 1.

© The Author(s) 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5_8

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‘sanctity of contract’, the influence of contracts on the copyright balance raises questions that border not only on law, but also on public policy.3 It is important to note that despite the theocratic and common law foundations of sanctity of contract, it has, over time, been qualified on the basis of fairness, rather than doctrine sensu stricto.4 Based on such concepts as ‘consideration, privity, mistake, duress, etc.…’, it has been argued that at the root of modern contract law is the notion of the freedom of parties ‘to construct their own bargains and insist upon their literal performance’.5 The possible problem here is that, in the peculiar circumstances of the Nigerian popular music industry that were narrated in the data chapter of this book,6 it may be too much of a generalisation to presume that performing authors freely bargain and enter certain contracts. This chapter will therefore consider aspects of both copyright law and common law which purport to regulate contractual dealings over copyright, but which may be operated in ways that are contrary to performing authors and their creative autonomy. This will be seen in the peculiarities of some regulations in copyright law,7 and in the way that some common law requirements for the validity of contracts are flouted via unfair bargaining terms in recording contracts.8

8.2

Assignments v Licences

Nigerian copyright law contains certain provisions that regulate, to some extent, the types of transactions that may be made over copyrights and the ways in which such transactions may be conducted.9 The Act provides

3 Elkin-Koren, N, “Copyright Policy and the Limits of Freedom of Contract” (1997) 12 (1) Berkeley Technology Law Journal, pp 93–114, p 108. 4 Infra, Sect. 8.4; Sharma, KM, “From ‘Sanctity’ to ‘Fairness’: An Uneasy Transition in the Law of Contracts?” (1999) 18 (2) New York Law School Journal of International and Comparative Law, pp 95–180, p 101. 5 Ibid., p 101 and 97. 6 The conclusion and summary of the findings are reported, supra, Sect. 4.7. 7 Infra, Sects. 8.2 and 8.3. 8 Infra, Sect. 8.4. 9 Section 11 Copyright Act 2004 (Nigeria).

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that copyright is transmissible in whole or in part,10 and specifically states thus(1) Subject to the provisions of this section, copyright shall be transmissible by assignment, by testamentary disposition or by operation of law, as movable property. (2) An assignment or testamentary disposition of copyright may be limited so as to apply to only some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area. (3) No assignment of copyright and no exclusive licence to do an act the doing of which is controlled by copyright shall have effect unless it is in writing.11 Despite the nuances to copyright exploitation agreements provided in the Act, performing authors may not have the requisite knowledge of copyright, or the bargaining influence to protect their interests and safeguard their creative autonomy in negotiating copyright exploitation contracts.12 As has been noted above, while Section 11 (1) of the Act allows for copyright to be conveyed by assignment, the provisions of Section 11 (2) are to the effect that limits may be placed on the transmission of copyright so that the transmission effectively operates as a licence and not an assignment of the entire term of the copyright.13 Although the Act does not specifically explain the words ‘licence’, its provisions for the limited transmissions of copyright imply transmissions by licence. It may be understood from the Act that copyright licences transmitted may be exclusive, non-exclusive or sole, and recognising the significance of exclusive licences, the Act requires such transmissions to

10 Section 11 (2), ibid. 11 Section 11 (1), (2) and (3) Copyright Act 2004 (Nigeria). 12 Supra, Sect. 4.2.3; Gani, MW, “Negotiating Like a Diva: Preserving Creative

Autonomy in the Music Industry”, op. cit., p 41. 13 “An assignment or testamentary disposition of copyright may be limited so as to apply to only some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area”, Section 11 (2) Copyright Act C28, LFN 2004 (Nigeria).

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be executed in writing.14 The main concern for this section is that, exercising the assignment of the entirety of copyright,15 where an option to transmit by exclusive licences exists, can have negative effects for performing authors’ creative autonomy. Firstly, where the option to licence or to assign are available in a transaction, it may be imagined that recording companies negotiating with performing authors would be more likely to attempt to secure an assignment. Their argument for assignments rather than licences may be based on the claim that the risk and investments involved in signing on a performing author necessitate a commitment from the performing author, evidenced by an assignment of their rights.16 However, such claims de-emphasise the fact that the investments recording companies make in promoting a performing author’s works may have been termed in contracts as ‘recoupable advances’, which are eventually deducted from the performing author’s gross earnings. Moreover, the flaws in this argument, which apparently also play out in the book publishing industry, have been identified thusThe fact is, of course, that the eminent publishers who have called attention to the inevitable element of risk in the conduct of their affairs have been prone to exaggerate the unreliability of their judgment in selecting manuscripts for publication at their own risk. Suppose it to be true that four books out of five fail to pay: are they all- were they ever all- issued at the risk of the publisher? Faced with really risky propositions, do they not suggest to the luckless author that he should share the risk with them or bear the whole costs, or secure a subsidy from elsewhere?17

Plant’s arguments serve as a useful rebuttal, and it is evident that such claims by recording companies disregard the notion that performing

14 Assignments are also required to be in writing, Section 11 (3) Copyright Act, op. cit. 15 That is, all the exclusive rights in a copyright, and for the entire duration of the

existence of the right, supra, Sect. 1.8.2, Fig. 1.1. 16 Rafoth, RA, “Limitations of the 1999 Work-for-Hire Amendment: Courts Should Not Consider Sound Recordings to Be Works-for-Hire When Artists’ Termination Rights Begin Vesting in Year 2013” (2000) 53 (3) Vanderbilt Law Review, pp 1021–1054, p 1027. 17 Plant, A, “The Economic Aspects of Copyright in Books” (1934) 2 Economica, pp 167–195, p 184.

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authors signing recording contracts with them and assigning their copyrights are also engaging in risk by so doing. Thus, the second argument against assignments of copyright is that performing authors risk whether or not recording companies would actually utilise the assignment by conscientiously promoting their musical work. It is in this context that grave injustice to creative autonomy may occur. Where performing authors create a work and are bound in a contract with a recording company that undertakes to promote such work, if the company fails to promote the work or only does so minimally, the effect is as though the performing author were gagged and their creative expression forcefully hindered. Such was the case in Macaulay v Schroeder Music Publishing Co Ltd,18 where the plaintiff signed a contract with the defendant by which he assigned the entire copyright in all his songs to the defendant, without any corresponding obligation on the defendant’s part to publish or promote the defendant’s work. Considering the terms of the contract and the circumstances under which it was made, the House of Lords held that its terms constituted an unfair restraint of trade.19 The problem of unfair restraint of trade may be observed alongside unfair bargaining terms which will be discussed further in this chapter,20 however, it may be noted that in cases with similar facts, courts have maintained the same position as the decision in the Schroeder case.21 In fact, in the case between Silvertone Records Ltd and Zomba Music Publishers Ltd v Mountfield, the court held that the contract was in restraint of trade, even though the defendants had obtained legal advice before signing it.22 Although it may be argued that an agreement to assign copyrights is valid when it is negotiated and signed in good faith and without compulsion,23 considering the duration of copyrights, and the risk of assignees failing to promote a work, the legality of assigning copyrights may require re-assessment. Copyright in literary and musical works last for the life of the author plus seventy years, and copyright in sound recordings are

18 [1974] 3 All ER 616, [1974] 1 WLR, 1308 (HL). 19 Ibid. 20 Infra, Sect. 8.4. 21 Zang Tumb Tuum Records Ltd v Johnson [1993] EMLR 61; Silvertone Records Ltd

and Zomba Music Publishers Ltd v Mountfield [1993] EMLR 152. 22 Ibid. 23 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142.

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protected for ‘fifty years after the end of the year in which the recording was first made’.24 Thus, assigning the entire term of copyright protection can be disadvantageous for performing authors. The use of assignments as a means of copyright transmission is not unique to common law systems. In French copyright law (droit d’auteur), economic rights, termed as ‘patrimonial’, are transferrable with or without payment.25 However, civil law systems like Germany and France do not maintain the principle of freedom of contract (without extensive provisos) as far as it pertains to such transactions.26 Instead, they construe authors in copyright exploitation contracts as intrinsically being the weaker party, and thus establish safeguards that undergird such contracts.27 The French Intellectual Property Code allows copyright assignments to be made, but provides extensive regulations on copyright exploitation contracts.28 With specific regard to assignments, Article L 131 provides the followinga. Although assignments may be total or partial (article L 131-4), the Code prohibits the total transfer of future works, article L 131-1; b. Exploitation contracts are required to be in writing, article L 131-2; c. The law requires that rights granted in a contract must be specifically mentioned, and construed specifically for the purpose for which they were granted, article L 131-3; d. Where a contract is deemed as burdensome to the author, the author may demand a review of the price conditions, article L 131-5; e. Clauses which assign works in a format that is yet unforeseen must be explicit and ‘shall stipulate participation correlated to the profits from exploitation’, article L 131-6; f. Where assignees exercise rights assigned to them by authors, they must do so ‘subject to the conditions and limitations and for the duration laid down in the contract, and with the obligation to render accounts’, article L 131-7.

24 First schedule, Copyright Act C28, LFN 2004 (Nigeria). 25 Article L 122-7 Intellectual Property Code 1992 (France). 26 Lewinski, SV, International Copyright Law and Policy (Oxford University Press, Oxford, New York, et al., 2008), p 59. 27 Ibid. 28 Article L 131 Intellectual Property Code 1992 (France).

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The German system also provides safeguards for authors in copyright transactions through its ‘monist’ approach to copyright and moral rights, which essentially makes copyright non-assignable, and only exploitable via exclusive or non-exclusive licences.29 In further protection of authors in exploitation contracts, the German Act has a ‘best-seller’ clause, which provides thusWhere the author has granted an exploitation right to another party on conditions which, taking into account the author’s entire relationship with the other party, result in the agreed remuneration being conspicuously disproportionate to the proceeds and benefits derived from the exploitation of the work, the other party shall be obliged, at the author’s request, to consent to a modification of the agreement which grants the author further equitable participation appropriate to the circumstances. It shall be irrelevant whether the parties to the agreement had foreseen or could have foreseen the amount of the proceeds or benefits obtained.30

Although the exercise of the ‘best-seller’ right is subject to specific circumstances like collective agreements,31 its protection of authors’ interests is also established in the provision that the right cannot be waived in advance.32 Be that as it may, recommending the adoption of the German approach to copyright exploitation may be alien to the common law background of the Nigerian system. Instead, a consideration of the US reversion clause may be instructive for Nigerian copyright law.33 The third argument against assignments of copyright is that performing authors may be unaware of the implications of making such assignments, and this adds further doubt to the legitimacy of a law

29 Article 29 and article 31 UrhG 1965 (Germany); Guibault, L, Hugenholtz, PB, et al., Study on the Conditions Applicable to Contracts Relating to Intellectual Property in the European Union: Final Report, op. cit., p 75. 30 Article 32a (1) UrhG 1965 (Germany); Guibault, L, Hugenholtz, PB, et al., Study on the Conditions Applicable to Contracts Relating to Intellectual Property in the European Union: Final Report, op. cit., p 80; the effect of this provision was noted in the dispute over the “Das Boot” movie in the Vacano case [unreported] Decision of the BGH of 22 September 2011 (case no I ZR 127/10). 31 Article 32a (4) UrhG 1965 (Germany). 32 Article 32a (3), ibid. 33 Infra, Sect. 9.3.3.

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allowing this practice.34 Performing authors transmitting their copyright in a recording contract by way of an assignment, may do so out of ignorance of the law and the option of licences,35 and recording companies bargaining for such rights may not disclose the option of licences to the un-savvy performing author. Once again, the need for performing authors to be enlightened concerning copyright law is highlighted. Problem: the assignment of copyrights appears to portend negative implications for the creative autonomy of performing authors. Recommendation: Legislative: transmission may strictly be by exclusive licences only, or by assignments with the safeguard of a reversion clause.

8.3 Work-for-Hire Clauses in Recording Contracts It has been noted that recording contracts are commonly drafted in such a way as to constitute work-for-hire contracts.36 Of concern for the creative autonomy of performing authors in the USA, a congressional amendment of copyright law altered the subject matter of work-for-hire contracts and included sound recordings, in circumstances that were considered by critics as having been irregular,37 and at the instance of the RIAA.38 34 Macaulay v Schroeder Music Publishing Co Ltd, supra. 35 Supra, Sect. 4.2.3. 36 Gould, D, “Time’s Up: Copyright Termination, Work-for-Hire and the Recording Industry” (2007) 31 (1) The Columbia Journal of Law and the Arts, pp 91–138, p 96; Anderson, JB, “The Work Made for Hire Doctrine and California Recording Contracts: A Recipe for Disaster” (1994) 17 (3) Hastings Communication and Entertainment Law Journal, pp 587–600, p 592; Matesky, MP, “Whose Song Is It Anyway? When Are Sound Recordings Used in Audiovisual Works Subject to Termination Rights and When Are They Works Made for Hire?” (2005) 5 (1) Virginia Sports and Entertainment Law Journal, pp 63–96, p 70. 37 Rafoth, RA, “Limitations of the 1999 Work-for-Hire Amendment: Courts Should Not Consider Sound Recordings to Be Works-for-Hire When Artists’ Termination Rights Begin Vesting in Year 2013”, op. cit., p 1023. 38 The “RIAA” is the Recording Industry Association of America which reportedly represents “ninety percent of record companies in the United States”, Field, C, “Their

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Initially, the US Copyright Act (1976) had specifically limited work-forhire agreements to employment relationships and specified circumstances of commissioned work,39 but the amendment was contained in the Intellectual Property and Omnibus Communications Reform Act 1999 (USA). In criticism of the amendment, it was argued that, ‘congress passed the 1999 amendment without considering equitable principles, legal precedent, or the uniquely intricate compromise underlying the 1976 legislation’.40 Furthermore, at that time courts had only recently held that sound recordings did not constitute works-for-hire.41 In the debates that ensued following this amendment, it was evident that work-for-hire recording contracts appeared to be beneficial to recording companies but were detrimental for performing authors,42 and another Act was passed in the following year restoring the status quo ante.43 However, this Act did not categorically define or restrict the subject matter of work-for-hire contracts, but merely overruled the amendment in the previous Act. The same trend of utilising work-for-hire clauses in recording contracts can be observed in the Nigerian popular music industry. Record labels may prefer this format to the use of assignments in their recording contracts, while young and desperate performing authors may not have the benefit of negotiating the terms of their contracts, or may not understand the impact of a work-for-hire clause. It appears that the development of this trend is in disregard of the fact that Nigerian copyright law, similar to the US position discussed above, allows work-for-hire

Master’s Voice—Recording Artists, Bright Lines, and Bowie Bonds: The Debate over Sound Recordings as Works Made for Hire” (2000) 48 (1) Journal of the Copyright Society of the USA, pp 145–190, p 168. 39 Section 101 Copyright Act 1976 (US). 40 Rafoth, RA, “Limitations of the 1999 Work-for-Hire Amendment: Courts Should

Not Consider Sound Recordings to Be Works-for-Hire When Artists’ Termination Rights Begin Vesting in Year 2013”, op. cit., p 1023. 41 Ballas v Tedesco 41 F Supp 2d 531 (1999). 42 Rafoth, RA, “Limitations of the 1999 Work-for-Hire Amendment: Courts Should

Not Consider Sound Recordings to Be Works-for-Hire When Artists’ Termination Rights Begin Vesting in Year 2013”, op. cit., p 1025. 43 Work Made for Hire and Copyright Corrections Act, 2000 (US).

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agreements specifically only for the employer/employee relationship in the context of the publishing of periodicals.44 The Act states thusWhere a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical; or to the reproduction of the work for the purpose of its being so published; but in all other respects, the author shall be the first owner of the copyright in the work.45

From the foregoing, the legality of drafting recording contracts as work-for-hire agreements in Nigeria is thus indefensible. Even with the work-for-hire arrangement allowed by the Act in the context of authorship for periodicals, the Act enables employees to negotiate to retain their copyrights in such situations, by including the proviso, ‘…in the absence of any agreement to the contrary’.46 It is therefore evident that the spirit of the Act is not flippant with divesting an author of copyrights. The trend of work-for-hire clauses in recording contracts thus seems to be derived from inordinate practices of record labels, and an accompanying ignorance on the part of performing authors. Work-for-hire contracts in Nigerian copyright law have been criticised on the basis of the argument that considering the legislative history of copyright in Nigeria, ‘the continued retention of this provision is hard to justify’.47 Furthermore, the Nigerian Constitution provides that rights in property shall not be compulsorily acquired, and establishes that where rights are thus acquired, compensation must be paid according to the interests of the original owner in the subject matter.48 The specific reference of this section of the Constitution to rights in immoveable property, expressly includes the subject matter of intellectual property44 Peter Obe v Grapevine Communications Ltd (Suit No FHC/L/CS/1247/97). 45 Section 10 (3) Copyright Act 2004 (Nigeria) (emphasis added). 46 Ibid. 47 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 132. 48 Section 44 (1) Nigerian Constitution 1999.

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No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law…49

Although the Constitution establishes a proviso stating that the provisions of Section 44 (1) do not obviate any ‘general law… or obligations arising out of contracts’,50 attempts to interpret this proviso to mean that the obligations under a contract supersede the requirement of compensation or consideration under contract law, may constitute mischief which the Constitution did not intend.51 The intention of the Constitution, in the absence of commentary stating otherwise, can be inferred from its reference to ‘general law’ which would include contract law. Its intention may also be evident from its abhorrence of compulsory acquisition. Therefore, the method of acquiring copyrights in recording contracts through workfor-hire clauses, though possibly legitimate in the USA,52 appears to be unconstitutional in Nigeria. Work-for-hire recording contracts may contain an alternative assignment clause, assigning performing authors’ copyrights to their recording company.53 However, this alternative clause does not mitigate the problem for performing authors, especially when the terms of the recording contract are standard terms over which a performing author is unable to negotiate.54 In economic terms, work-for-hire recording contracts have been criticised thusBy contracting with the artists as traditional independent contractors and using the specially commissioned work made for hire doctrine, the labels

49 Section 44 (1) (a) and (b) Nigerian Constitution 1999. 50 Section 44 (2) (c) Nigerian Constitution 1999. 51 The issue of consideration will be discussed in further detail, infra, Sect. 8.4.2. 52 Greenwich Film Productions SA v DRG Records, No 91 Civ 0546, 1992 WL 279357

(SDNY Sept 25, 1992); Gould, D, “Time’s Up: Copyright Termination, Work-for-Hire and the Recording Industry”, op. cit., p 97. 53 Ibid., p 97. 54 Nimmer, D and Menell, P, “Sound Recordings, Works for Hire, and the Termination-

of-Transfers Time Bomb” (2001) 49 (2) Journal of the Copyright Society of the USA, pp 387–416, p 393; infra, Sect. 8.4.1.

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have gained control of the artists’ output as if it were their own authorship, without having to afford the artist the job, wage, and benefit security of regular employees. In fact, as shown above, the labels can get away with paying the artists virtually nothing for their output, even if that output is profitable to the company.55

Since the central concern of this book is creative autonomy, it is important to note that the notion of autonomy does not likely arise in the context of a work-for-hire agreement. In such contractual arrangements, the employment context empowers the record label not only to influence, but also to dictate the creative direction of the performing author’s career and to veto what they release to the public. To confirm this, it has been noted that budding artists are often contractually required to adhere to their record label’s choice of songs to perform and record.56 Worse still for the performing author, a work-for-hire recording contract may not specifically obligate the record label to release any of the performing author’s works, thus effectively hindering their creative autonomy and stifling their expression. The use of work-for-hire clauses in recording contracts appears to constitute a flagrant contravention of the Act, but it may require informed performing authors who have some understanding of copyright law and know their rights to effectively challenge its use.57 Indeed, the apparent non-eagerness of Nigerian society as far as litigation is concerned,58 suggests that seeking to challenge this trend only through judicial pronouncements may not be an effective plan without the requisite education and empowerment of performing authors. Furthermore, it will be beneficial for any revisions to the law to expressly state the illegality of work-for-hire contracts in any context other than as specified by the Act.

55 Anderson, JB, “The Work Made for Hire Doctrine and California Recording Contracts: A Recipe for Disaster”, op. cit., p 593. 56 Shemel, S and Krasilovsky, MW, This Business of Music (5th ed, Billboard Publications Inc, New York, 1985), p 9. 57 “For such negotiations, it is wise for the artist to have an understanding of the basic elements in a form recording contract”, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 3. 58 (11 July 2013) Interview with Professor Bankole Sodipo, op. cit.

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Problem: There is systemic discordance between the provisions of Section 10 (3) of the Nigerian Copyright Act and the use of work-forhire clauses in recording contracts, made at the instance of recording companies. Recommendation: Policy: The need for copyright education for performing authors is emphasised. Legislative: It is recommended that the Act specifically proscribes the use of work-for-hire clauses in recording contracts.

8.4

Unfair Bargaining Terms

Under Nigerian copyright law, parties to a contract are generally free to determine their terms.59 However, there are formalities required by copyright law with respect to copyright exploitation contracts,60 and the general subject matter of contracts as regulated in Nigeria, requires adherence to the common law standards for offer, acceptance, consideration and intention to create a legal obligation on the basis of legal capacity. This is because common law principles that were in force in England as at 1st January 1900, were made applicable in Nigeria by virtue of the Interpretation Act (Nigeria).61 This subchapter is concerned with the ways in which recording companies avoid certain requirements of contract law via unfair bargaining terms. This is evident in unfair contract terms, contraventions of the requirement of consideration and the use of ambiguous clauses. 8.4.1

Unfair Terms

As has been noted earlier in this book,62 both contract law and copyright law regulate certain aspects of copyright exploitation contracts by 59 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 132. 60 Supra, Sect. 8.2. 61 Section 32 (1) Interpretation Act C123, LFN 2004 (Nigeria); Agbonika, JMA, “The Principle and Nature of Law of Contract in Nigeria: Formation of Binding Contract” (2012) 5 (4) Journal of Politics and Law, pp 123–128, p 124. 62 Supra, Sect. 8.1.

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providing guidelines for the transmission of rights. With regard to copyright law, the Nigerian Copyright Act provides that transmissions of copyright may be of the whole right or parts of the right.63 It also requires that assignments and exclusive licences must be in writing, and requires that they must be signed by the assignor or licensor.64 Beyond this, the Act does not specify the words to be used in such transmissions, and in a UK judicial decision that may be considered advisory in Nigerian courts, it has been held that no specific format for wording is required.65 It has also been held that there is no requirement for notices or registration of transfers of copyright ownership.66 It is clear that the regulation of copyright exploitation contracts in the Act generally deals with contract formalities and does not go into much detail regarding the surrounding circumstances underlying copyright transmissions.67 The legislative intention behind this may be adherence to the principle of freedom or sanctity of contract which generally holds that two consenting parties should be free to engage in contractual agreements without the interference of government.68 Nevertheless, it has been argued that legislative activity in England and case law developments in the law on contracts appear to have shaped and structured this freedom around ‘religious, ethical or moral considerations’.69 Ashley concedes that it may occasionally be beneficial for courts to disregard express agreements, but argues that it must be done ‘in extreme cases and with great

63 Section 11 (2) Copyright Act C28, LFN 2004 (Nigeria). 64 Section 11 (3) Copyright Act C28, LFN 2004 (Nigeria). 65 Cray Valley Ltd v Deltech Europe Ltd [2003] EWHC (ChD) 728. 66 Performing Right Society Ltd v London Theatre of Varieties Ltd [1924] 1 AC 1 (HL). 67 In addition to the requirements of written and signed instruments of assignments,

possibly in recognition of the business practices in cultural industries and in an effort to facilitate transaction costs, the law provides that copyright in works that have not yet been created may be effectively transmitted as movable property, Section 11 (7) Copyright Act C28, LFN 2004 (Nigeria); also, in the absence of contrary stipulations in a will, Section 11 (8) makes provisions for the devolution of copyright by testamentary disposition, along with the bequest of the material on which the work was first recorded. 68 Ashley, CD, “Should There Be Freedom of Contract” (1904) 4 (6) Columbia Law Review, pp 423–427, p 423; Clarke v Watson [1865] 18CBR, US 278; Parry, DH, The Sanctity of Contracts in English Law (Stevens & Sons Limited, London, 1959), p 18. 69 Parry, DH, The Sanctity of Contracts in English Law, op. cit., p 24.

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caution’.70 With regard to freedom of contract in copyright transactions, it has also been argued as followsThat conclusion holds true, of course, only in the absence of any market failure that would undermine the fundamental propositions on which the freedom of contract rests (for instance, the proposition that both parties acted voluntarily or that they were fully informed).71

The exception to freedom of contracts with which this section is concerned, is the issue of unfair bargaining terms. With the developments in case law in the twentieth century, unfair bargaining terms can be considered as a legacy of common law,72 however, the legal principle has been statutorily codified in the UK.73 A legislative Bill on the subject was tabled before the Nigerian Federal Legislative Houses in 2010.74 The Bill was introduced but was not passed, and it is unclear whether it will be reintroduced, however, its contents provide a glimpse into the possible legislative thought on the issue. This section considers the provisions of the Nigerian Bill, case law on the subject, and the incidence of unfair bargaining contracts in the popular music industry. It then highlights the way in which unfair terms are detrimental to performing authors’ creative autonomy. The definition of an unfair term according to the Bill is ‘any term in a contract concluded between a seller or supplier and a consumer where

70 Ashley, CD, “Should There Be Freedom of Contract”, op. cit., p 427. 71 Elkin-Koren, N, “Copyright Policy and the Limits of Freedom of Contract”, op. cit.,

p 108. 72 Macaulay v Schroeder Music Publishing Ltd [1974] 3 All ER 616; initially, the traditional principle of freedom of contract appears to have operated to firmly lock in parties to the terms of their agreement without much wiggle room, even if the terms of the contract were not necessarily fair or equal, Kretschmer, M, “Copyright and Contracts: A Brief Introduction” (2006) 3 (1) Review of Economic Research on Copyright Issues, pp 75–81, p 76. 73 Unfair Contract Terms Act 1977 (UK); the position of UK law on the subject was amended to reflect the EU Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts. It appears to even out the bargaining between parties to a contract by restricting onerous impositions by one party, Section 5, Unfair Terms in Consumer Contracts Regulations 1999 (UK). 74 Consumer Contracts (Regulation of Unfair Terms) Bill 2010 (Nigeria), hereafter referred to as “Consumer Contracts Bill 2010 (Nigeria)”.

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such term has not been individually negotiated’.75 The Bill clarifies the issue of negotiation by providing that…A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has not been able to influence the substance of the term.76

Furthermore in proscribing unfair terms, the Bill provides that even if some terms in a contract had been negotiated, where the contract is seen to have been generated from a standard format, the non-negotiated aspects of the contract would still be considered unfair.77 It excludes ‘any term which, contrary to the requirement of good faith, causes significant imbalance in the parties’ rights and obligations under the contract’, and in assessing this, it considers the ‘circumstances attending the conclusion of the contract’.78 It is unclear whether the Bill envisaged application to the music industry. Nevertheless, relating its provisions to the relationship between performing authors and their record labels, record labels may be considered as sellers of their professional services, and the Bill places the burden of proof on a seller who asserts that the terms of an agreement had been negotiated.79 Rather pertinently, under this Bill, unfair terms are not binding on a consumer, but ‘the contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term’.80 Although the effect of the Bill may only be assessed after it has been enacted, it may restrain record labels from the imposition of terms that require performing authors to assign their copyrights. Of particular

75 Section 3 (1) Consumer Contracts Bill 2010 (Nigeria). 76 Section 3 (3), ibid. 77 Section 3 (4), ibid; this appears to be a stronger position than the argument that

states that where record labels offer recording contracts containing standard terms about which they entertain minimal negotiation, unequal bargaining power may have been exercised, but that where negotiations over standard contract terms are not entertained at all, unequal bargaining power will evidently have been exercised, Bagehot, R, “Star or Slave? Holly Johnson Revisited” (1990) 1 (1) Entertainment Law Review, pp 16–22, p 19. 78 Section 4 (1) and (2), Consumer Contracts Bill 2010 (Nigeria). 79 Section 3(5), ibid. 80 Section 5 (1) and (2), ibid.

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importance for this book, it may also restrain record labels from exercising a veto over the creative autonomy and direction of a performing author’s musical output. Furthermore, it may open up vistas for budding performing authors to effectively engage in negotiating their recording contracts in order to preserve their creative autonomy, where this may have previously been impossible or difficult.81 With regard to case law, the Macaulay case exposed some of the inequities in copyright contracts in the popular music industry.82 In this case a budding music author signed a standard form publishing contract with a music publisher by which he assigned the copyright in all his compositions to the publisher. The terms of the agreement were not negotiated by the parties, and the agreement did not require the publisher to promote or exploit the assignor’s work. The House of Lords held that the contract constituted an unfair restraint of trade as it effectively operated to sterilise the author’s work. This case raises some questions for copyright exploitation contracts that may be important for authorial autonomy in the Nigerian context1. Whether the terms of the contract were negotiated; and 2. Whether the terms of the contract impose obligations not only on the performing author, but corresponding obligations on the assignee or licensee.83 With regard to fairness in the corresponding obligations of assignees, the Holly Johnson case is instructive.84 In this case the defendant, Holly Johnson, was a singer in the group ‘Frankie Goes to Hollywood’, and they had a recording contract with Zang Tumb Tuum Records and a publishing deal with Perfect Songs Ltd, a related company. When Holly Johnson decided to leave the group citing his concerns about 81 30% of the performing authors interviewed had not negotiated their recording contracts, supra, Sect. 4.2.2; 33% of the record label executives interviewed expressed their unwillingness to negotiate recording contracts with performing authors that were new on their labels. Rather, they utilised standard form contracts, supra, Sect. 4.3.2. 82 Macaulay v Schroeder Music Publishing Ltd, op. cit. 83 It also appears to indicate that in the negotiation of such contracts, where performing

authors are inexperienced with copyright law, the importance of legal advice may be crucial. 84 Zang Tumb Tuum Records Ltd v Johnson [1993] E.M.L.R. 61.

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the creative direction of the group, the record label and its affiliate publishing company sought the court to restrain him, citing the terms of the recording contract. They also sought to restrain him from signing any other recording contracts. As part of its defence and counter-claim, the group cited their concerns about the amount of monies spent on their behalf in recording and production costs, as this affected the royalties that eventually accrued to them. The court held that the record label had an implied obligation under the contract to curtail recording costs so as to minimise the recoupable monies that would be deducted from the group’s earnings. The court held that the record label had failed to fulfil this obligation. In keeping with the decision of the House of Lords in the Macaulay case,85 the court also found the recording terms of the contract to be an unreasonable restraint of trade and gave judgment for the defendant.86 On appeal, the Court of Appeal upheld the decision of the lower court, ruling that the terms of the recording contract were too unfair to be enforced. It was also held that the contract was signed on unequal bargaining terms as the record company had not entertained the alterations suggested by the group’s lawyer. Furthermore, it was held that the signing of the contract by the group did not constitute a waiver of their rights to subsequently object to it. Although a superficial reading of the decision in George Michael’s Panayiotou case may suggest that it contradicts the principle of fair bargaining,87 the decision appears to be a fair adjudication of the issue. In this case, the court held that where disputes regarding unfair terms of trade are resolved by the parties in free and fair negotiations facilitated by legal advice and a new agreement is duly executed, the new agreement cannot be subsequently deemed as a restraint of trade. Identifying practical solutions for the music industry from the Holly Johnson case, it has been argued that the words of recording contracts are

85 Macaulay v Schroeder Music Publishing Ltd, op. cit. 86 Similarly in the American case of Motown Record Corp v Brockert (1984) 160 Cal.

App. 3d 123, “the contracts were found insufficient to support the issuance of an injunction restraining Teena Marie from performing for other employers, although the companies may seek damages from Teena Marie for the alleged breach of the exclusivity clause”, http://www.angelfire.com/la2/dytcafe/teenamarielawarticle.html (accessed 26 February 2020). 87 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229.

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as crucially important as the conduct of record labels.88 As such, record labels in addition to ensuring that performing authors have ‘competent independent legal advice’ in the negotiation process, should be willing to negotiate the details of the contract terms, adopting standard terms only for administrative issues in the contract.89 Bagehot further asserts that ‘every unusual obligation or restriction imposed upon the artist should be commercially justifiable, and there must be an equal value quid pro quo from the company’.90 Implementing this recommendation in the Nigerian law on copyright exploitation contracts may thus be beneficial for the protection of performing authors’ creative autonomy. Problem: unfair terms in recording contracts may effectively undermine performing authors’ creative autonomy. Recommendation: Legislative: the conundrum may be addressed by the legislative proscription of standard form copyright exploitation contracts in the popular music industry, and by requiring copyright assignees to negotiate all terms in copyright exploitation contracts and to make undertakings thereto.

8.4.2

Non-payment of Consideration: Controlled Composition Clauses

The requirement of consideration is established under common law as a prerequisite element of a valid contract and it has been defined thusA valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other.91 88 Bagehot, R, “Star or Slave? Holly Johnson Revisited”, op. cit., p 22; “Frankie Goes to Court” Entertainers’ Contractors’ (16 November 1988) The Law Society Gazette, available at http://www.lawgazette.co.uk/news/039frankie-goes-court039-entert ainers039-contractors (accessed 18 March 2013). 89 Bagehot, R, “Star or Slave? Holly Johnson Revisited”, op. cit., p 22. 90 Ibid. 91 Currie v Misa (1875) LR 10 Ex 153.

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It has been described as a requirement on the basis of the concept that ‘nothing goes for nothing’,92 and although the courts do not require consideration to be of commensurate value to a promise, they nevertheless require some form of value.93 Moreover, as has been shown earlier in this chapter,94 the requirement of consideration appears to be reflected in the constitutional requirement for compensation in the acquisition of movable and immovable property.95 The Constitution also establishes that ‘…every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions’,96 and reading both sections together implies that the Constitution extends the requirement of consideration to intellectual property transactions. The issue is that in the negotiation of recording contracts, it has been observed that recording companies typically attempt to secure assignments of copyright in musical compositions from performing authors,97 without furnishing consideration. This is in addition to the copyright in sound recordings which the recording companies may already own.98 As has been described earlier in this book, the relationship between performing authors and their record labels features the combination of creative resources from performing authors, and administrative and logistic resources from recording companies,99 typically in exchange for a profit-sharing formula known as royalties.100 Royalties have been described as ‘a percentage of the wholesale price…paid for each record sold’,101 and it may be argued that the recording company’s share in the 92 Agbonika, JMA, “The Principle and Nature of Law of Contract in Nigeria: Formation of Binding Contract”, op. cit., p 126. 93 Stilk v Myrick [1809] EWHC KB J58; the notion of value in this regard seems to elude precise qualification in case law as it appears to have been viewed differently by courts, Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] EWCA Civ 5; Hartley v Ponsonby [1857] 7 E & B 872; Cook v Wright (1861) 1 B & S 559. 94 Supra, Sect. 8.3. 95 Section 44 (1) Nigerian Constitution 1999. 96 Section 39 (2) ibid. 97 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 18; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., pp 191–193. 98 Supra, Sect. 6.3.2. 99 Supra, Sect. 2.3. 100 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 3. 101 Passman, D, All You Need to Know About the Music Business, op. cit., pp 72–73.

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income from records sold is justified as the value of their administrative and logistic contribution to the performing author’s career. Accordingly, since the royalty sharing formula is already reflective of the contributions of both parties, where the entire copyright in a performing authors’ composition or catalogue is additionally assigned to a recording company in a recording contract, it raises the question of consideration. Although it may be argued that the performing author’s assignment of their copyrights is made in consideration for a recording contract, this notion does not appear valid. The case of Williams v Roffey Bros & Nicholls (Contractors) Ltd may be cited to emphasise that for any extraneous benefit beyond the scope of the contract, there should logically and legally be distinct consideration to that effect.102 Additionally, the Nigerian Copyright Commission has advised that in copyright-related contracts, licensors and assignors of copyright should be wary of licensees and assignees attempting to avoid or reduce the consideration payable.103 The success of recording companies in securing copyright in musical compositions and the accompanying publishing rights may be determined by the bargaining leverage a performing author may or may not have. However, it has been observed that where recording companies are unable to secure some or all of the performing author’s exclusive rights,104 they may also attempt to skirt the requirement of consideration by the use of a contractual term known as the ‘controlled compositions clause’. It is particularly relevant to performing authors in recording contracts, as it refers to musical compositions that form part of a recording commitment, have been written or co-written by the performing author and are controlled by them.105 Through controlled composition clauses, recording companies require licences to the mechanical rights in songs written or controlled by the performing author, for a percentage less than the statutory rate.106 In doing this, recording companies may either restrict the rates they pay 102 Williams v Roffey Bros & Nicholls (Contractors) Ltd, op. cit. 103 Nigerian Copyright Commission, “Guidelines for Copyright Agreements”, avail-

able at http://www.copyright.gov.ng/images/downloads/CONTENTS%20OF%20A% 20COPYRIGHT%20AGREEMENT.pdf, paragraph 3.0 (accessed 9 March 2013). 104 These rights have been enumerated, supra, Sect. 1.8.2. 105 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 199. 106 Passman, D, All You Need to Know About the Music Business, op. cit., p 239;

Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 196.

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per song, or restrict the number of songs in an album for which they are willing to pay a licence fee, thereby avoiding payment for additional songs. In industry terms, this may be referred to as ‘excess mechanical royalties’.107 In the United States where the popular music industry first blossomed,108 copyright law appears to have taken cognisance of this problem by providing for a statutory rate payable for mechanical licenses.109 Moreover it has been argued that the intentions behind the inclusion of compulsory licensing and statutory mechanical rates were the protection of music composers on the one hand, and the prevention of music monopolies on the other.110 This provision is present in Nigerian copyright law and the same reasoning may have been applied to the drafting of the Act, as it provides a ‘prescribed’ royalty rate with regard to recordings of musical works.111 Under the Act, the prescribed rate is to be determined by regulations set forth by the Nigerian Copyright Commission, and shall be ‘an amount equal to a percentage of the ordinary retail selling price of the record’.112 Although the prescribed rates may provide protection for performing authors, it is also possible for statutorily prescribed rates to be detrimental for them in the sense that it restricts the negotiating platform of the performing author to the specified rate.113 Moreover, where the legislative wording stipulating the statutory rate does not specifically establish 107 Bagehot, R, Music Business Agreements, op. cit., p 146; Schulenberg, R, Legal Aspects

of the Music Industry, op. cit., p 196 and p 199; Passman, D, All You Need to Know About the Music Business, op. cit., p 239. 108 American, Thomas Edison’s invention of the phonogram may be said to have heralded the development of the popular music industry, supra, Sect. 2.2. 109 Section 115 (c) (2) Copyright Act 1976 (US) specifies the statutory rate, however, the Copyright Royalty Tribunal established by the Act is empowered to revise the rate and make reasonable adjustments, Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 146 and p 151; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 519; the provision of a statutory rate also serves to regulate the procedure for obtaining compulsory mechanical licences. 110 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 222. 111 Paragraph 10, Schedule 3, Copyright Act C28, LFN 2004 (Nigeria); it also requires

producers to issue the prescribed notice to music authors of their intention to record their works; Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 94. 112 Paragraph 2, Schedule 3, Copyright Act 2004 (Nigeria). 113 Shemel, S and Krasilovsky, MW, This Business of Music, op. cit., p 146.

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it as the ‘minimum’ rate, the bargaining prospects of performing authors may be worsened. This is perhaps the reason why in the contractual negotiations between recording companies and performing authors, recording companies have been observed to commonly require concessions from performing authors for the recording of controlled compositions.114 Typically, they offer to pay three quarters of the statutory rate,115 and more aggressive recording companies may seek to pay even less. It therefore stands to reason that where performing authors choose to record their own original compositions, they may be at an economic disadvantage that results in undermined creative autonomy, and it has been argued thusThere would be discrimination against the artist…. There is created a disincentive for him to record his own songs.116

The situation appears to be particularly unfavourable for the creative autonomy of performing authors,117 and it has been noted that some have resorted to publishing under pseudonyms to avoid the monetary implications of using their real names.118 More specifically, the fact that they may not receive the full statutory rates for the performance of their own works may discourage authorial expression in performing authors. Additionally, the fact that performing authors may have ‘little or no control over the choice of songs to be recorded’ may further restrict their creative autonomy.119 To address this conundrum, some would recommend that performing authors should pursue publishing agreements and recording contracts on separate platforms or with separate companies. However controlled composition clauses may be drafted with broad terms so as to require reduced rates on any compositions over which the performing author 114 Bagehot, R, Music Business Agreements, op. cit., p 146. 115 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 196. 116 Bagehot, R, Music Business Agreements, op. cit., p 147. 117 Third party-authors, on the other hand, may receive the full statutory rate for the mechanical rights in their works, Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 197. 118 Bagehot, R, Music Business Agreements, op. cit., p 147. 119 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 197; Shemel, S and

Krasilovsky, MW, This Business of Music, op. cit., p 9.

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has any form of control, whether total or partial.120 Therefore, the onus depends on legislative language and the strict prescription and application of a minimum royalty rate, without which the creative autonomy of performing authors may be effectively undermined. Problem: Non-payment of consideration for assignments of copyright, and the avoidance of consideration through controlled composition clauses creates economic disadvantages for the expression of creative autonomy. Recommendation: Policy: Copyright education for performing authors. Legislative amendments may1. Require distinct consideration for the assignment of copyright in exploitation contracts; and 2. Include of the word “minimum” in the legislative specification of the statutory licence rate.

8.4.3

Ambiguous Terms

The Nigerian Consumer Contracts Bill discussed earlier,121 also eschews ambiguity in contract terms for consumer contracts, and considers such terms as unfairA seller or supplier shall ensure that any written term of a contract is expressed in plain readable, intelligible language, and if there is doubt about the meaning of a written term, the interpretation most favourable to the consumer shall prevail.122

In the context of the Nigerian popular music industry, the conundrum that ‘X-band’ faced when their record label made ambiguous creative requirements were discussed earlier in this book.123 From an international perspective, the reports of the dispute between US popular recording

120 Passman, D, All You Need to Know About the Music Business, op. cit., p 238; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 196. 121 Supra, Sect. 8.4.1. 122 Section 7 Consumer Contracts Bill 2010 (Nigeria). 123 Supra, Sect. 4.6.1.2.

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artist Ciara and her record label Jive Records also show the effect of ambiguous terms and requirements on performing authorsCiara’s dispute with Jive Records became known when she publicised her complaints about her recording contract, asserting that her label had ignored her creative choices, denied her their financial backing on recording projects, and had blocked radio stations from releasing songs she independently financed. Unable to satisfy the label’s arbitrary demands or to comply with the creative direction of the label, she is quoted as saying, “I’ve tried to be a team player with the label only to have compromised what I truly believed.” She thus publicly pleaded to be released from her recording contract, as had her label mate rapper Big Boi, who left Jive Records because the label criticised his album as being “a piece of art.”124

Jive Records’ reported criticism of Big Boi’s album as a ‘piece of art’ may appear ambiguous, but a similar sentiment was expressed by a Nigeria record label executive when asked about Nigerian performing authors. With regard to the disputes between performing authors and their record labels, he asserted thus, ‘You cannot afford to be too artistic for commerce’.125 From these incidents, it appears that record labels may use terms in recording contracts to set arbitrary and ambiguous creative goals for performing authors, in order to exercise their veto and control over the performing author’s musical output. This indicates that record labels can use their executive discretion to limit the creative autonomy of performing authors, despite the argument that contractual terms in recording agreements ‘must be capable of absolute definition’.126

124 Gani, MW, “Negotiating Like a Diva: Preserving Creative Autonomy in the Music Industry”, op.cit., p 42; E Ramirez, “Ciara Pleads to Be Released from Jive” (2011), available at http://rapfix.mtv.com/?p=8880feed/flux_content (accessed 16 July 2019); “Jive Records Cockblocking Andre3000 from Big Boi Debut”, available at http://www.impose magazine.com/bytes/jive-records-cockblocking-andre3000-from-big-boi-debut (accessed 6 October 2019); T Breihan, “Big Boi Beefs with Jive Records over Andre 3000 Collaborations” (2010), available at http://pitchfork.com/news/39069-big-boi-beefs-with-jiverecords-over-andre-3000-collaborations/ (accessed 6 October 2019). 125 (21 February 2012) Interview with Cobhams Asuquo, Record Label Executive, CAMP. 126 Bagehot, R, “Star or Slave? Holly Johnson Revisited”, op. cit., p 22.

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In efforts to resolve the unfairness caused by ambiguous terms in the Nigerian context, courts and the federal legislature may adopt the position of UK case law in Hadley v Kemp which reflects the importance of specificity in music industry contracts.127 The French requirement of specificity in exploitation contracts may also be instructive.128 Furthermore, Germany and some civil law systems practice the ‘in dubio pro auctore’ principle, by which ambiguities are resolved in favour of the author on the basis of the purpose of the transfer.129 Accordingly, with regard to the subject matter of the ‘minimum recording commitment’ in recording contracts, such terms should be capable of unambiguous definition and definite fulfilment. Additionally, they should be defined on the basis of the performing author’s creative proclivities, rather than in restrictive ways defined by record label executives. Contractually requiring performing authors to produce songs that satisfy a label’s concept of commercial viability, which may be incapable of clear definition, may be injurious for authorial autonomy and incapable of objective satisfaction, and thus contractually unsound. Problem: ambiguous creative goals imposed on performing authors by record labels can hinder creative autonomy. Recommendation: Legislative: ambiguous terms in recording contracts may be interpreted in favour of the performing author.

8.5

Conclusion

This chapter set out to identify irregularities in recording contracts which may be drafted to undermine the creative autonomy of performing authors. It was observed that while some provisions in the Nigerian Copyright Act may be constructed in recording contracts in ways that may be detrimental to performing authors, some of the safeguards for contracts 127 Hadley v Kemp [1999] Ch 4 WLUK 377. 128 Article L 131-3 Intellectual Property Code 1992 (France). 129 Article 31 (5) UrhG 1965 (Germany), Guibault, L, Hugenholtz, PB, et al., Study

on the Conditions Applicable to Contracts Relating to Intellectual Property in the European Union: Final Report, op. cit., p 80.

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under common law have been routinely manipulated at the expense of creative autonomy. With regard to copyright law, the chapter argued that the provision for assignments of copyright under the Nigerian Act was capable of being abused where assignees were not under corresponding obligations to promote the work assigned to them. Although a work may have been autonomously created, where there are no corresponding obligations to promote it, the assignees inaction may hinder the public expression of such works and thus stifle the performing author’s voice. Furthermore, enabling assignments of copyright without safeguards for assignors who may not have the privilege of legal advice and may be unaware of the implications, may create inequities for the performing author where there is no option for reversion. Also with regard to copyright law, the trend among record labels of utilising ‘work-for-hire’ clauses in recording contracts was identified as a deliberate impediment to the creative autonomy of performing authors. Such clauses lock performing authors into ‘employment contracts’ without the traditionally associated labour benefits. It appropriates their copyrights, and effectively stifles their authorial autonomy because under an employment contract, the employee/performing author would be obliged to create and perform musical works at the behest of their employer/record label. The chapter showed that the use of unfair contract terms in recording contracts has been proscribed under case law, and eschewed by a legislative bill. Both sources disapprove the use of standard form contracts in such relationships over which one party may have denied the other the opportunity to negotiate contractual terms. The trend of using standard form recording contracts in the Nigerian popular music industry was observed as being particularly common in record labels’ interactions with budding performing authors, and it was argued that it may be used as a tool to stifle the creative autonomy of performing authors. Under common law, the requirement of consideration is a necessary element of a valid contract, but it appears to have been routinely evaded in recording contracts in the Nigerian popular music industry. This chapter noted that this happens when record labels obtain an assignment of performing authors’ copyrights without furnishing consideration for this transaction. Furthermore, it identified the inherent dangers to performing authors’ creative autonomy posed by ‘controlled composition clauses’, as such clauses make it expensive and difficult for performing authors to

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express their authorial autonomy, and cheaper to comply with the creative dictates of record labels. It was argued that the use of ambiguous, unclear terms in recording contracts have negative effects for performing authors, and examples were given to show that such terms have typically held performing authors’ creative autonomy and careers to ransom, at the mercy of record labels’ arbitrary and subjective satisfaction. From this chapter, it appears that the prospects for performing authors with regard to the exercise of their creative autonomy may be bleak. However, the next chapter of this book will make legislative and policy recommendations intended to alleviate the hardships that may otherwise be occasioned to performing authors by manipulations of copyright and contracts.

CHAPTER 9

Strategic Policy and Legislative Recommendations for the Preservation of Creative Autonomy

9.1

Introduction

The last three chapters of this book identified potential problems for the creative autonomy of performing authors in the Nigerian popular music industry that may arise from certain interpretations of copyright law, new practices in music business and problematic contract terms.1 Even though copyright laws have been present in Nigerian jurisprudence since 1912,2 the status of performing authors’ creative autonomy as empirically observed in this book,3 appears at variance with the view that copyright should, ‘give to authors the power of preserving the purity of their works, and of securing them from pretended abridgements, which would emasculate, or pervert, or pollute them…’.4 Mr Sergeant Talfourd expressed this view in the parliamentary debate over the 1841 Copyright Bill seeking an extension of copyright protection to 60 years after the death of the author. He was also concerned that the literary endeavour of his day was of ‘light and airy character, and of temporary interest’. Considering the

1 Supra, Chapters 6–8. 2 Section 28, Copyright Act 1911 of the United Kingdom made the Act applicable in

Nigeria by Order-in-Council. 3 Supra, Sect. 4.7. 4 HC Deb 5 February 1841, vol 56, col 341–360, col 342.

© The Author(s) 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5_9

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observations of the Nigerian popular music industry made in this book,5 Mr Talfourd’s concerns about authorial autonomy may not have changed much. In attempts to remedy the status quo, disputes can be summarily referred to resolution mechanisms such as litigation or avenues of alternative dispute resolution. However, all avenues of dispute resolution feature varying costs in terms of time, procedural fees and broken relationships. These costs may be classified as the transaction costs of the dispute resolution process, and such costs can be particularly disadvantageous for performing authors because of the time-sensitive nature of their careers and their copyrights.6 Furthermore, as was noted earlier in this book, there appears to be a long-existing hesitation in Nigerian society towards litigation on copyright issues, and this is evident in the dearth of Nigerian case law on the subject.7 Therefore, referring recurrent problems, such as threats to performing authors’ creative autonomy, to dispute resolution processes may be ineffective. This approach does not treat the problem at its formative level but allows it to blow into bigger proportions before it is addressed. This chapter suggests strategic policy and legislative measures that may be beneficial for the protection of creative autonomy in the Nigerian popular music industry. It highlights the importance for Nigeria to chart its own national copyright goals, alongside the prevalence of global approaches to intellectual property. To conclude, this chapter constructs and proffers a draft copyright amendment bill that rephrases the legislative recommendations suggested in the chapter.

9.2 Policy Recommendations: Guidelines for Performing Authors The use of public policy in the field of intellectual property may be considered narrow, but this does not negate its importance.8 Publishing and recording companies, who are often not the primary authors of copyright 5 Supra, Sect. 4.5.3. 6 Macaulay v Schroeder Music Publishing Ltd, op. cit. 7 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 38; (11 July 2013)

Interview with Bankole Sodipo, op. cit.; supra, Sect. 5.2. 8 Waelde, C and Brown, AEL, “A Practical Analysis of the Human Rights Paradox in Intellectual Property Law: Russian Roulette”, in Grosheide, W, Intellectual Property and Human Rights; a Paradox (Edward Elgar, Cheltenham and Northampton, 2010), p 189.

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works, have been rather vocal in the discourse on copyright law and policy lobbying.9 However, it has been argued that unless authors engage in the copyright discourse at the levels of policy formulation, copyright legislation may result in ‘structures that are as imbalanced as the record deals [I] discussed before’.10 The legislative procedure for implementing amendments to copyright law that would safeguard authorial autonomy may be lengthy and involve bureaucratic challenges. Nevertheless, the onus is on performing authors to understand copyright law in relation to the dynamics of the music industry and take actions that reflect their own unique interests. Access to legal advice may be costly for some performing authors, and while this subchapter is not a substitute for securing legal advice, it will make policy recommendations to enable performing authors act strategically for the preservation of their creative autonomy. It will proffer guidelines for performing authors in their typical working environments and contractual negotiations by highlighting the importance of courting public sympathy, copyright education for performing authors and adherence to commonly unknown industry etiquette. 9.2.1

The Importance of Courting Public Sympathy

In the dispute between Hip Hop rap group the Lox and their record label Bad Boy Records, it was reported that the group went on a hiatus when they disagreed with the creative direction of the label, and they sought to be released from their recording and publishing contracts.11 Taking a hiatus, induced by disagreements with record labels, is one of the hallmarks of threatened creative autonomy. They argued that ‘they were being presented as manufactured and for the mainstream’,12 and intended to move to the Ruff Ryders/Interscope label under which platform they believed they could more freely express their ‘hard-core rap’ 9 Dutfield, G, and Suthersanen, U, Global Intellectual Property Law, op. cit., p 25. 10 Toomey, J, “The Future of Music”, op. cit., p 238. 11 “The Lox Biography”, available at http://www.sing365.com/music/lyric.nsf/TheLOX-Biography/13CEF1265A9EB790482568C6001059C7 (accessed 13 April 2013); Erlewine, ST, “Artist Biography” All Music, available at https://www.allmusic.com/art ist/the-lox-mn0000045629/biography (accessed 2 February 2020). 12 Dow, D, “Jadakiss Reunites with Diddy for ‘The Last Kiss’” (2009) available at http://www.sohh.com/2009/04/diddy_endorses_jadakiss.html (accessed 13 April 2013).

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sensibilities.13 However, when the negotiations between their lawyers and their label did not lead to their release from the contracts, it was reported that the group resorted to public campaigns and the use of the media. They initiated a movement by wearing t-shirts with the inscription ‘Free the Lox’ to perform at a rap concert, thereby generating public support for their campaign.14 The group was eventually released from their recording contract, but later resorted to a radio campaign in order to pressure producer Sean ‘Diddy’ Combs to release them from their publishing contract.15 They asserted, We really changed the game by doing that… it might take years from now, but other people are gonna do it. We made it so they don’t have to be scared to speak up.16

The eventual resolution of this dispute through public pressure suggests that society also has an interest in the preservation of the authorial autonomy of performing authors. Moreover, in this case it may be observed that the transaction costs of contractually retaining an artist against their wishes is also unfavourably high to record labels, and consequently to the economy. Arguing for the freedoms of users with respect to copyright works, Elkin-Koren assertsUsers are arguably always subject to restrictions when they use a copyrighted work. But restrictions imposed by copyright law are limited and reflect the balance between the need to induce creation and the need to guarantee public access to information. If copyright owners are free to use contractual arrangements to restrict use, and are then able to use copyright to prevent any use that is not subject to these restrictions, owners are gaining absolute monopoly over their works.17 13 “The Lox Biography”, op. cit. 14 Dow, D, “Jadakiss Reunites with Diddy for ‘The Last Kiss’”, op. cit. 15 Slaughter, J, “Lox and Diddy Settle Publishing Dispute” (2005)

available at http://www.hiphopreaction.com/news/Lox-and-Diddy-settle-publishing-dispute (accessed 13 April 2013); Dow, D, “Jadakiss Reunites with Diddy for ‘The Last Kiss’”, op. cit. 16 “The Lox Biography”, op. cit. 17 Elkin-Koren, N, “Copyright Policy and the Limits of Freedom of Contract”, op. cit.,

p 110.

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Relating this argument to the music industry and the involvement of the public in the case of The Lox, it is clear that when record labels contractually become copyright owners, their imposition of creative restrictions on performing authors may constitute a monopoly over the machinery of cultural production. Furthermore, it results in the infringement of the public’s access to cultural goods, a right which copyright law traditionally seeks to protect. Obvious as this point may seem, this book recommends that in disputes where, for some reason the legal machinery is not an option, performing authors should court and rely on the use of public and media sympathy to salvage creative autonomy. Be that as it may, courting public sympathy is not a guaranteed strategy. Mase, a US rapper who was formerly under Bad Boy Records, has complained publicly about being underpaid for the publishing rights which he assigned to Bad Boy Records.18 It is unclear whether or not the initial agreement constituted an unfair contract, based on the analysis conducted earlier in this book.19 However, he has utilised public sympathy to pressure Sean ‘Diddy’ Combs, and the effects of this recent campaign remain to be seen. Note to performing authors: Performing authors will benefit from maintaining cordial interactions with users of their works and with listeners, because public lobbying and social campaigns can be an effective means of preserving or restoring threatened creative autonomy.

9.2.2

Copyright Education for Performing Authors

The Performing Musicians Employers’ Association of Nigeria (PMAN) is the umbrella body for musicians in Nigeria and it exists to protect the interests of its members in order to ensure that the employment of their potentials is in their best interest.20 One of its objectives is ‘to engage

18 “Rapper Mase Calls out Diddy over Publishing Rights” (31 January 2020) The

Associated Press, available at https://apnews.com/9570ae13e6e80485557864362dba67e2 (accessed 2 February 2020). 19 Supra, Sect. 8.4.1. 20 “Performing Musicians Employers’ Association of Nigeria”, information available

at http://pmanonlinenet.fatcow.com/about.html (accessed 27 February 2020), supra, Sect. 3.2.

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in and organize the training and education of members generally and set up institutions to facilitate such training and education in Nigeria’.21 With regard to creative autonomy, another of its objectives is ‘to protect the creative and performing rights of all member musicians in Nigeria’.22 It therefore appears that the Association appreciates the importance of educating its members.23 Be that as it may, the observations from the fieldwork conducted for this book revealed that performing authors in the Nigerian popular music industry may not have benefited from the stated objectives of PMAN, as over half of the sample admitted to knowing very little of copyright law and expressed a desire to learn more about the law.24 Even for those who have some foundational knowledge on copyright law, the dynamic nature of the law makes its continued study a necessity for professional musicians.25 This book recommends the organisation and implementation of periodic seminars and workshops on copyright law for the benefit of performing authors, whether by PMAN or by some other associations for performing authors. For accredited academic purposes, lobbying for the establishment of diploma programmes and certified courses on copyright law in the various universities in the country may promote scholarship on copyright issues. In addition, the creative autonomy of performing authors may benefit from the establishment of guild-run legal clinics, organised by PMAN. In such clinics, legal advice may be offered on a short term, non-retainership basis by which performing authors in critical situations may have easier, quicker and cheaper access to legal advice, per problem. This approach to legal services may save costs, time and efficiency for both lawyers 21 Article 1 (1) “Objects of PMAN”, op. cit. 22 Article 1 (4) “Objects of PMAN”, op. cit. 23 However it has been alleged that the Association has suffered from poor manage-

ment and that the welfare of its members needs to be prioritized, Ben-Nwankwo, N, “PMAN Resembles Nigeria Where Many Presidents Come to Make Money – Felix Duke” (29 September 2012) Punch, available at http://www.punchng.com/feature/enc ounter/pman-resembles-nigeria-where-many-presidents-come-to-make-money-felix-duke/ (accessed 23 October 2012); Nwachukwu, C, “Nigerian Music Nigeria—A New Dawn for Nigerian Music Industry”, op. Cit.; supra, Sect. 3.2. 24 Supra, Sect. 4.2.3. 25 Try, A, “A Musician’s Introduction to Copyright” (2009) available at http://

audio.tutsplus.com/articles/general/a-musicians-introduction-to-copyright/ (accessed 27 February 2020).

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and performing authors, as performing authors who experience financial challenges may not have the resources to accommodate recurrent bills. Pursuing payments after offering legal advice may also be futile.26 Note to performing authors: The need for legal representation goes without saying. However, seeking some level of copyright education, whether as an individual or as part of a professional association of performing authors, may be crucial for the preservation of creative autonomy.

9.2.3

Guidelines for Performing Authors in Negotiations for Copyright Exploitation Contracts

From the observations in the data collected for this book, it was noted that in the interactions between performing authors and record labels, their divergent interests may clash.27 Performing authors are often unable or unwelcome to negotiate recording contracts that reflect their creative autonomy, and often cannot afford legal support in negotiating such contracts. It has therefore been asserted that performing authors in negotiations with record labels should insist that publishing and recording rights are clearly defined, and not treated as one bundle for the purposes of contract.28 This may enable the performing author to exact a payment for the assignment of their publishing rights beyond songwriter royalties. Where the performing author assigns their publishing rights to a recording company, the weak bargaining position of the performing author may be weakened further as they may lose leverage upon which to determine their creative direction.29 Indeed, it has been noted that

26 (11 July 2013) Interview with Bankole Sodipo, op. cit. 27 Supra, Sect. 4.5. 28 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 194. 29 Supra, Sect. 8.4.1.

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‘where parties to a contract are left with a wide margin of discretion, such discretion is almost always exercised in favour of the stronger party’.30 Although recording companies may pressure the performing author for the assignment of their publishing rights, this book recommends that performing authors should insist on reserving their publishing rights. Where this does not appear possible, performing authors will be better served by offering recording companies exclusive licences to their publishing rights for a limited time. Furthermore, with regard to the observation that the inclusion of controlled composition clauses in recording contracts may hinder creative autonomy by discouraging performing authors from performing and recording their own compositions,31 this book recommends that performing authors refute the inclusion of such clauses in their recording contracts.32 Note to performing authors: In recording contracts, negotiating for separate and specific treatment of publishing rights and recording rights, may be in the interest of creative autonomy. Performing authors should endeavour to retain their publishing rights, or at most, subject them to licences, rather than assignments.

9.2.4

Recording Studio Etiquette for the Performing Author

Chapter 6 highlights the legal conflicts that may arise for a performing author where their authorship occurs simultaneously within a performance.33 Therefore, it is recommended that performing authors develop the habit of liaising with the organisers of functions where they are to perform publicly, in order to assert copyright in the subject matter of their random performances, before the fact. This may be done by making a public service announcement regarding the ownership of the 30 Asein, JO, “Redefinition of First Ownership Under Nigerian Copyright Law; Lessons from an Inchoate Mutation” (2007) 38 (3) International Review of Intellectual Property and Competition Law, pp 299–316, p 313. 31 Supra, Sect. 8.4.2. 32 Bagehot, R, Music Business Agreements, op. cit., p 147. 33 Supra, Sect. 6.3.

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compositions to be performed, before the commencement of the performance. Although it may be thought that performers’ rights may protect such performances from being recorded and distributed without authorisation, the existence of performers’ rights in a performance does not serve as prima facie evidence of copyright in the subject matter of the performance.34 Similarly, when performing authors commence work in a recording studio, it is in their interest to sign an undertaking with the producer or sound engineer in the studio, regarding the ownership of the compositions that will be performed and recorded at the studio. In events where it is difficult or impossible to make such claims before performing, it may be in the performing author’s interest to privately organise a recording of the performance to which they can make priority copyright claims.35 Note to performing authors: Before performing at recording studios or performance venues, performing authors may safeguard their creative autonomy by including the statements below in the contracts executed for such activitiesI, (specify name), assert my copyright and moral rights in all the works that I will perform at the session that will hold on (specify venue and date). This includes spontaneously authored works, and works which I have written before this date. I assert my performers’ rights in all of my performances at the specified venue, to the effect that any unauthorised recording or filming of such performance shall be an infringement of my rights and shall be legally addressed.

9.3 Legislative Recommendations: Reflecting the Importance and Fragility of Authorial Independence The music industry depends on copyright law for regulatory functionality, but it has been argued that copyright law is largely reflective of the business practices obtainable within the music industry, thus constituting 34 Supra, Sect. 6.3.1. 35 Hadley v Kemp, op. cit.

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some sort of mirroring.36 As such, the industry’s practices may influence the law as much as the law influences the industry. Furthermore, changes in copyright law may be shown to historically coincide with changes in business and technology,37 thus emphasising the strategic dynamism of the relationship between the law and key players in the music industry. With regard to the goal of balance in copyright laws, the equilibrium between the rights of creators and the cultural needs of society has traditionally been shaped by legislative activity in ‘tailoring the scope of protection’.38 Therefore, while judicial interpretation of the law may have far reaching consequences for disputes being resolved by litigation,39 it may be argued that the responsibility to reflect the importance of authorial autonomy rests on the legislative authorities of a country. Accordingly, it has been argued that lawmakers should not take the views and reports of recording companies as representative of the entire music industry, and that performing authors ought to actively engage in copyright dialogue.40 In this regard, the creative community in Nigeria appears to have taken a proactive approach to copyright lobbying in the past, particularly in the clamour that resulted in the 1988 Act.41 Be that as it may, it has been argued that musicians have generally not been actively involved in the copyright debate as some may find copyright issues to be complex and difficult to grasp, while others who appreciate copyright issues may not have access to mechanisms enabling their participation.42 36 Frith, S and Marshall L (eds), Music and Copyright, op. cit., p 14. 37 Davis, J, Intellectual Property Law, op. cit., p 35; Frith, S and Marshall L (eds), Music

and Copyright, op. cit., p 67. 38 Hilty, RM and Nérisson, S (eds), Balancing Copyright —A Survey of National Approaches (Springer, Verlag, Berlin, et al., 2012), p 1. 39 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 38, he asserts that Nigerian case law on copyright is in its budding phase and that in the absence of preferred Nigerian precedents, courts may resort to guidance from the case laws of other countries, especially common law countries. 40 Podlas, K, “The Moral of the Story…Musical Artists Must Protect Their Own Rights in Digital Music”, op. cit., p 271 and p 287. 41 Sodipo, B and Fagbemi, B (eds), Nigeria’s Foreign Investment Laws and Intellectual Property Rights, op. cit., p 158 and p 178; Shyllon F, Intellectual Property Law in Nigeria, op. cit., p 34. 42 Toomey, J, “The Future of Music” (2002) 10 (2) Intellectual Property Law Journal, pp 221–244, p 224; the importance of copyright education for performing authors was discussed, supra, Sect. 9.2.2.

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This subchapter makes suggestions for legislative reform in copyright that may alleviate some of the challenges to performing authors’ creative autonomy that have been discussed in this book. 9.3.1

Vesting Authorship of Sound Recordings in Performing Authors

Chapter 6 of this book elucidated the problems for performing authors’ creative autonomy when copyright in sound recordings is vested in producers, and when the initial ownership is determined by contract.43 The provision of the Act, which lists the categories of works eligible for copyright protection,44 does not expressly distinguish between the categories by classifying them as primary or secondary works. However, a distinction may be drawn between sound recording, broadcasts and films on the one hand, and literary, musical and artistic works on the other, by classifying the former as secondary or derivative works made from the latter.45 Furthermore, in relation to exclusive authorial rights in literary and musical works which are the subject of sound recordings,46 it has been established that performing authors shall have the exclusive right to do and to authorise the public performance,47 and the recording of their works.48 It may thus be argued that these provisions place some form of primacy on performing authors in relation to sound recording rights in their works. However, the second and third schedules of the Act limit the author’s control over derivative works made by other persons, by making provision for the licensed recording of musical and literary works, subject to the payment of the statutory licence fees.49 Nigerian case law also acknowledges that derivative works may qualify for copyright protection in so far as they are authorised by the copyright owner of the original work from which they are derived, and there are elements of originality in the derived 43 Supra, Sects. 6.3.2 and 6.3.3. 44 Section 1 (1) Copyright Act 2004 (Nigeria). 45 Davis, J, Intellectual Property Law, op. cit. p 35; supra, Sect. 5.2.1. 46 Supra, Sect. 1.8.2. 47 Section 6 (1) (a) (iii) Copyright Act 2004 (Nigeria). 48 Section 6 (1) (a) (v) Copyright Act 2004 (Nigeria). 49 Par i, Second Schedule, and Third Schedule, Copyright Act 2004 (Nigeria).

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work.50 Be that as it may, in the relationship between performing authors and recording companies, the logic may not follow seamlessly in the sense that, sound recordings made from a performing author’s compositions will necessarily include their vocal performance and the likelihood of their logistic contributions to the process. Therefore, with sound recordings that are independent of a performing author’s active contribution, vesting copyright in such works in the producer or record label may be justifiable. Whereas, it does not appear justifiable in instances where a performing author is actively involved in the authorship, performance and conceptualisation of the sound recording. Arguments for the centralised administration and licensing of derivative works have been made on the basis of the claim that vesting the ‘original author with control over derivative works is to minimize transaction costs’.51 Copyright law generally appears to adopt this approach by vesting bundles of controlling rights in copyright owners.52 Thus, an amendment of the current provisions on sound recordings may be in the interest of authorial autonomy, commerce and cultural progress. On a different note, some may argue that the contributions of the performing author to the recording process are adequately protected by performers’ rights. However, as this book already highlights,53 the position of performances in what may be described as the industrial sequence of popular music, does not guarantee authorial independence through performers’ rights. Moreover, the argument that performers’ rights should suffice as adequate recognition for the contributions of performing authors to the sound recording process of their works may be refuted by stretching the argument in the opposite direction. In this way, the technical contributions of the producer and the record label they represent may also be classified as a performance commensurate with performers’ rights. It may even be argued that an independent producer’s

50 Okediji v Osanyin (Suit No. FHC/IB/12/90); nevertheless, derivative works made without the permission of the copyright owner of the primary work from which it is inspired may still be liable for copyright infringement, Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 6; derivative works may be made from other derived works in a continuous cycle of cultural evolution. 51 Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 110. 52 Ibid., p 111; supra, Sect. 1.8.2. 53 Supra, Sect. 1.8.4.

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technical contributions may simply receive remuneration in the form of session fees or studio rental fees, without necessitating the incidence of any specified rights. From the foregoing, it appears that arguments may swing both ways. However, the stakes may be higher for performing authors, and the entire popular music industry may be impacted thereby.54 Therefore, it appears essential for the legislature to reflect the performing author’s significant material contributions to the recording process, and to ensure that copyrights in sound recordings do not constitute a means by which producers and record labels dictate to performing authors and restrict their creative autonomy. As was noted earlier in this book,55 Nigerian copyright law appears to recognise the input of performing authors to the recording process by vesting the authorship of sound recordings in ‘artists’,56 subject to contract.57 However, allowing contracts to determine the question of authorship may defeat the purpose. Therefore, this book recommends that the last phrase of the provision should be repealed. It reads… unless in either case the parties to the making of the sound recording, provide otherwise by contract.58

For the purpose of commerce, it may be argued that record labels require an incentive to invest in the production of cultural works, and that making legislative allowance for them to be vested with the authorship of sound recordings provides the security upon which they engage in business. However, considering the contributions of performing authors in the creative endeavour of composing, performing and recording their work, this book recommends that at the very least, performing authors and producers should be classed as joint authors of sound recordings. This

54 It was observed earlier in this book that the Nigerian popular music industry appears to operate on only 20% of its discovered authorial resources, supra, Sect. 4.2.1. 55 Supra, Sect. 6.3.2. 56 Presupposing that the artist is the performing author, the word ‘artist’ itself implies

proficiency in a distinct set of skills further lending credence to the performing author’s role in the making of sound recordings. 57 Section 51 (1) par 6 Copyright Act 2004 (Nigeria). 58 Ibid.

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is in agreement with the provisions of the interpretation section of the Act which defines a work of joint authorship asA work produced by the collaboration of two or more authors in which the contribution of each author is inseparable from the contribution of the other author or authors.59

9.3.2

Protecting Performing Authors’ Creative Autonomy in Copyright Exploitation Contracts

In the course of exploring the problems caused for performing authors’ creative autonomy through copyright and contracts,60 this book recommends the following issues for legislative deliberationa. To address the problems possible in the interactions between performing authors and record labels in their negotiations over sound recording copyrights, this book recommends that authorship of sound recordings should be statutorily vested in performing authors.61 b. With regard to moral rights, this book recommends the legislative rephrasing of moral rights in the Act, as positive rights, rather than rights that require assertion. It also recommends unequivocal prohibition of waiving moral rights for monetary compensation.62 c. With regard to problems for creative autonomy which may occur through assignments of copyright, this book recommends the legislative abolishment of copyright assignments, allowing only for exclusive licences. Alternatively, the implementation of a reversion clause may be considered more practicable and will be explored further in this chapter.63 d. As it relates to the use of work-for-hire clauses in recording contracts, this book recommends specific legislative proscription of the practice, except only in contracts where the employer/recording

59 Section 51 (1) par 28 Copyright Act 2004 (Nigeria). 60 Supra, Chapters 6 and 8. 61 Supra, Sect. 6.3.2. 62 Supra, Sect. 6.4. 63 Infra, Sect. 9.3.3.

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label undertakes corresponding obligations to satisfy the requirements of labour laws such as monthly salaries, benefits, holidays, pensions and retirement gratuities.64 This is because, with regard to the creative autonomy of performing authors, even under the Labour Act, forced labour constitutes an offence.65 e. With regard to the systemic avoidance of furnishing consideration by recording companies, the recommendations of this book are two fold1. establishing statutory requirement of specific consideration for the assignment of copyright in exploitation contracts, which must be distinct from royalty sharing formulas; and 2. the use of the word “minimum” in the legislative specification of the statutory licence rate.66 f. Unequal bargaining terms and unfair contracts were discussed and it was observed that a Bill has already been presented to the Nigerian Federal Legislative Houses to proscribe unfair contract terms. This book further recommends the implementation of statutory provisions that require copyright assignees to execute undertakings averring that they had entertained negotiations from assignors who are performing authors.67 It also recommends the establishment of statutory requirements for clearly articulated contract terms.68 It is important to note that notwithstanding the legislative implementation of the foregoing, an aggrieved performing author in a recording contract would still have a right to initiate legal proceedings despite having signed a contract, as was seen in the Holly Johnson case.69

64 Supra, Sect. 8.3. 65 Section 73 Labour Act L1, LFN 2004 (Nigeria). 66 Supra, Sect. 8.4.2. 67 Supra, Sect. 8.4.1. 68 Supra, Sect. 8.4.3. 69 Zang Tumb Tuum Records Ltd v Johnson, op. cit.

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9.3.3

The Practicality of Reintroducing the Reversion Clause

Article 7 of the Berne Convention provides copyright protection for a term comprising of the life of the author and an additional fifty years after the author’s death.70 However, the Convention makes provisions for member countries to provide for longer terms of protection than the Convention stipulates.71 Accordingly, the Nigerian Copyright Act provides copyright protection for longer terms than the Berne Convention, and it has been opined that this may have been due to the influence and contribution of Nigerian authors in the law making process.72 Paragraph 1 of the First Schedule to the Act establishes copyright duration in literary, musical and artistic works, at seventy years after the end of the year of the author’s death, and paragraph 3 provides copyright protection for sound recordings, for ‘fifty years after the end of the year in which the recording was first made’. 73 Considering the duration of copyright protection provided under UK and USA Copyright laws,74 the Nigerian position is unusual. However, in view of the unequal bargaining position of performing authors in negotiating recording contracts,75 it is possible for performing authors to assign the entire copyright term in their works, without appreciating the long-term implications for both commerce and particularly for creative autonomy. In the Fred Fisher Music Co case, the court noted that ‘authors are…frequently…so sorely pressed for funds that they are willing to sell their work for a mere pittance’.76 In this regard, and also with respect to the fact that recording companies may not optimally promote performing authors’ works despite having obtained their copyrights via 70 Article 7 (1) Berne Convention 1886. 71 Article 7 (6) Berne Convention 1886. 72 Asein, JO, Nigerian Copyright Law and Practice, op. cit., p 109. 73 Paragraph 1 and paragraph 3, First Schedule, Copyright Act 2004 (Nigeria). 74 Section 12 (2) CDPA 1988 (UK) provides for copyright in literary, dramatic, musical

and artistic works, for the life of the author and seventy additional years. Section 13A (2) (a) of the Act provides copyright for sound recordings, for 50 years from the end of the year it was made; the UK position is reflective of Article 1 (1) Directive 2006/116/EC of the European Union; similarly US federal position on copyright duration provides for the life of the author and an additional seventy years, section 302 (a) Copyright Act 1976 (USA). 75 Supra, Sect. 8.4.1. 76 Fred Fisher Music Co v Witmark & Sons [1943] 318 US 643, p 656.

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contract, German and USA law provide remedies, respectively referred to as revocation and reversion. Although the German Act does not provide for assignments of copyright, but only exclusive exploitation licences,77 the Act provides as followsIf the holder of an exclusive exploitation right does not exercise such right or exercises it insufficiently, and if thereby serious injury is caused to the author’s legitimate interests, the latter may revoke the exploitation right. This shall not apply if non- exercise or insufficient exercise is mainly due to circumstances which the author can reasonably be expected to remedy.78

By the provisions of this section, revocation can only occur at least two years after the grant of the exploitation right. It must be preceded by a notice to the grantee, and may equitably require the indemnification of an affected party.79 Furthermore, the right cannot be waived in advance.80 The approach of the US Copyright Act sets the reversion window much farther than Germany. It appears to take the problems of authors into cognisance by making provisions for transfers of copyright to revert to them, or their specified heirs,81 after …thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.82

This has been referred to as the ‘reversion clause’, and the origins of the clause may be traced to the Statute of Anne, which was first the modern statute on copyright, and provided thus-

77 Supra, Sect. 1.8.2; section 31 UrhG 1965 (Germany). 78 Section 41 (1) UrhG 1965 (Germany). 79 Ibid. 80 Section 41 (4) UrhG 1965 (Germany). 81 Section 203 (2) Copyright Act 1976 (USA). 82 Section 203 (a) (3) Copyright Act 1976 (USA).

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Provided always that after the expiration of the said term of fourteen years, the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years.83

The provision of a reversion clause in the Statute of Anne served to distinguish ‘between copyright for authors and protection for publishers or reproducers of their work’.84 It was considered justifiable on the basis of authors’ weaker bargaining positions and the need for measures against publishers’ monopolies.85 It has also been asserted that because of the business climate for authors under the system of printing privileges which preceded the Statute of Anne, the intention of the reversion clause was to vest economic rights in authors rather than their assignees.86 It was apparent that assignees had typically benefitted from receiving publishing rights without making commensurate payments to authors.87 Although some suggest that the legislative reasoning behind the adoption of two terms of fourteen years may have been an attempt to comply with the 1624 Statute of Monopolies,88 it has been asserted that the phrasing of the provision clearly appears to be targeted towards empowering the author.89 9.3.3.1 Economic Practicality While it has been argued that the goal of the Statute of Anne was not author-centric, but aimed at stimulating competition among publishers

83 Section 11, Statute of Anne 1710, 8 Anne, c19 (UK). 84 Thomas, D, Copyright and the Creative Artist (Institute of Economic Affairs,

London, 1967), p 22; Bently, L and Ginsburg, JC, “‘The Sole Right…Shall Return to the Authors’: Anglo-American Authors’ Reversion Rights from the Statute of Anne to Contemporary US Copyright” (2010) 8 (23) Columbia Public Law & Legal Theory Working Papers, pp 1–95, p 3. 85 Thomas, D, Copyright and the Creative Artist, op. cit., p 23. 86 Bently, L and Ginsburg, JC, “‘The Sole Right…Shall Return to the Authors’: Anglo-

American Authors’ Reversion Rights from the Statute of Anne to Contemporary US Copyright”, op. cit., p 2 and p 6. 87 Ibid., p 3. 88 Statute of Monopolies 1624, 21 Jac, c3 (UK). 89 Bently, L and Ginsburg, JC, “‘The Sole Right…Shall Return to the Authors’: Anglo-

American Authors’ Reversion Rights from the Statute of Anne to Contemporary US Copyright”, op. cit., p 6 and p 8.

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and booksellers,90 it may be argued that the reversionary interests of the author served both authors and booksellers. The existence of the clause was not likely to deter an entrepreneur from taking on a ‘normal business risk’ which he would have ordinarily taken if the clause did not exist.91 In fact, the reversion clause resulted in healthy ‘competitions by price and quality, as a result of which the interests of the author, the publisher and the public were equally well served’.92 The fact that both the interests of authors and publishers were served by the clause, suggests that the reintroduction of the clause may serve as a beneficial tool for balancing the competing interests of music industry stakeholders. With reference to the practicality of copyright reversion, it has been argued that the operational costs of renewing copyright for a second term may not favour the continuation of the system.93 However, where a performing author exercises their reversion right and subsequently releases a second edition or ‘remix’ of their work which correctly reflects their original authorial intention, the cost of exercising the reversionary right may be offset by the socio-economic benefits of releasing the remix. This is evident in the modern spate of remixing old songs and remaking old movies that contribute to richer cultural economies. With regard to the economics of instituting a reversion clause, it has been observed that authors in jurisdictions where the clause is operational have been known to assign their copyrights together with their reversion rights to publishers by executing powers of attorney enabling publishers to obtain the renewed right.94 A study discovered that the only author–publisher contract documents from the eighteenth century, which expressly referred to the reversion clause, were ‘in each case seeking then to override its operation’.95 Hence, it appears that the pecuniary 90 Suthersanen, U, “The First Global Copyright Act” (2012) 106 Queen Mary

University of London, School of Law Legal Studies Research Paper, pp 1–41, p 4. 91 Thomas, D, Copyright and the Creative Artist, op. cit., pp 22–23. 92 Ibid. 93 Harrington, JE, “Copyright Duration” (1962) 11 Copyright Law Symposium, pp

96–112, p 112. 94 Miller Music Corp v Charles Daniels, Inc [1960] 362 US 373; Mills Music, Inc. v Snyder [1985] 469 US 153; Harrington, JE, “Copyright Duration”, op. cit., p 99. 95 Bently, L and Ginsburg, JC, “‘The Sole Right…Shall Return to the Authors’: AngloAmerican Authors’ Reversion Rights From the Statute of Anne to Contemporary US Copyright”, op. cit., p 24.

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considerations for which authors assign their copyright, may also induce the assignment of their reversionary interests. Therefore, the economic issues that should be considered are whether the assignment of the first term alone would necessarily yield less revenue for the performing author than the transfer of both terms, and whether the reversion clause would discourage publishers and record labels from participating in the production of cultural works. With regard to the first issue, considering the current difficulties for some performing authors in recording contracts where they receive no specific consideration for the transfer of their copyright beyond a share in the publishing royalties,96 this question may be moot. Moreover, with regard to the second issue, it has been argued that investing publishers would engage in business whether or not the term of protection washalved, especially because any projected economic disadvantage in receiving only the first copyright term, may be neutralised by the advantage of being the first on the market.97 Nevertheless, authors in desperation may be oblivious to this. 9.3.3.2 Inalienability Despite the supposed inalienability of the reversion right under US copyright law,98 the law provides that ‘a derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination…’.99 For the performing author, this suggests that where authorship of sound recordings or masters are vested in the recording company via the producer,100 96 Supra, Sect. 8.4.2; advances paid to performing authors at the beginning of recording contracts may be recouped from mechanical royalties, further reducing the potential revenue of performing authors; Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 194. 97 Thomas, D, Copyright and the Creative Artist, op. cit., p 22; Landes, WM and Posner, RA, The Economic Structure of Intellectual Property Law, op. cit., p 42. 98 Section 304 (c) (5) Copyright Act 1976 (USA); Penguin Group (USA) Inc. v Steinbeck [2d Cir. 2008] 537 F3d 193; it has been argued that the decision in Steinbeck undermines the legislative intention to grant an inalienable reversion right to authors and their statutory successors, Menell, PS and Nimmer, D, “Judicial Resistance to Copyright Law’s Inalienable Right to Terminate Transfers” (2010) 33 (2) Columbia Journal of Law and the Arts, pp 227–239, p 233. 99 Section 203 (b) (1) Copyright Act 1976 (USA). 100 Supra, Sects. 6.3.2 and 9.3.1.

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the recording company may continue to utilise such recordings and earn revenue from them, regardless of the reversion of the publishing rights from which such recordings are made. 9.3.3.3 Restoring Creative Autonomy Although the purpose of the reversion clause may traditionally be considered as an economic measure safeguarding the financial interests of authors, it may also serve the purpose of preserving or rescuing the creative autonomy of performing authors. In the fieldwork for this book it was observed from the complaints of performing authors and the admissions of record label executives that record label executives often interfere in the authorial processes of performing authors.101 Also considering the influence that producers’ authorship of sound recordings can have on the creativity of performing authors,102 where a performing author’s work is produced by their record label in a way that alters their original authorial expression, the absence of reversionary rights means the integrity of such works may be irretrievably lost. In the Nigerian context, some may imagine that the statutory provision that allows the licensed recording of musical works as a derivative work, subject to payment of the statutory licence fees, solves the problem for authors.103 It may be assumed that performing authors whose recording contracts have ended can pay statutory licence fees to their former record labels, thus enabling them to independently record and release versions of their work that suit their original creative notions. However, this argument is speculative, as recording contracts may specifically restrict performing authors from such activities even after the termination of the contract, regardless of whether the new recording is to be made by the original author of the work. The reversion of copyright thus appears to be a rather positive way for the authorial integrity of such works to be restored.

101 Supra, Sects. 4.2.1 and 4.3.1. 102 Supra, Sect. 6.3.3. 103 Third Schedule, Copyright Act 2004 (Nigeria).

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9.3.3.4 Concluding Remarks on the Reversion Clause This book recommends the inclusion of the reversion clause in the Nigerian Copyright Act, as a safeguard for the protection of creative expression and the preservation of creative autonomy. The division of copyright protection into multiple terms is not foreign to the popular music industry where recording companies typically provide for ‘option periods’ in their recording contracts, to serve as performance-based renewable periods of engagement.104 In practice, option periods are almost exclusively the prerogative of the recording company,105 further highlighting the need for legislative intervention to provide balance in an otherwise potentially asymmetric relationship. With regard to the window for reversion, regard should be given to the duration of copyright protection in a work, and the fact that modern copyright laws have since increased the cumulative twenty-eight years provided by the Statute of Anne. Using the reversion clause as a tool for securing or restoring authorial independence, the question may be asked whether the time frame of thirty-five years, obtainable in the USA, is appropriate for this purpose.106 This question is germane, especially considering that the option periods recording companies use in recording contracts to ‘test’ the commercial viability of performing authors, may be as brief as a year, and may occasionally be less.107 Answers to this question may be framed on the nature and urgency of authorial restrictions experienced by performing authors, but should also consider that performing authors can seek the intervention of the courts to rescind legally invalid and voidable recording contracts.108 Where reversion rights are enacted, unless legislative intervention expressly precludes such rights from being assigned, the protection afforded to performing authors by the clause may be lost in contracts when they assign their reversionary rights.109 In this regard, US federal 104 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 35. 105 Ibid., p 36. 106 Toomey, J, “The Future of Music”, op. cit., p 236; Wong, KC, “Beyond the Gap: A Practical Understanding of Copyright’s Termination of Transfers Provisions” (2012) 27 (1) Berkeley Technology Law Journal, pp 613–644, p 615. 107 Schulenberg, R, Legal Aspects of the Music Industry, op. cit., p 35. 108 Macaulay v Schroeder Music Publishing Ltd, op. cit.; Zang Tumb Tuum Records Ltd

v Johnson, op. cit.; supra, Sect. 8.4.1. 109 Harrington, JE, “Copyright Duration”, op. cit., p 99.

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law on copyright reversion provides for the right to be exercised regardless of ‘any agreement to the contrary, including an agreement to make a will or to make any future grant’.110 Accordingly, this book recommends that legislative implementation of the reversion clause in Nigeria should expressly prohibit the assignment of reversionary rights, and the exercise of the right by any persons other than the author or their statutory successors, if the author is deceased.111 At the very least, it is recommended that assignments of reversionary rights should only be legally possible during the same time window as notification of the intention to revert.112 Although such laws may raise concerns about the validity of freedom and sanctity of contract, copyright law has generally been a product of the interaction and compromise between competing legal principles, the resolution of which the legislative has traditionally borne.113 9.3.4

The Importance of Implementing National Copyright Goals

Finally, with regard to legislative recommendations to address the problems for creative autonomy identified in this book, it is important for Nigerian legislative to develop and implement national copyright goals that will support and sustain further development in the music industry and other cultural industries. Nigeria, like many other countries, is a signatory to some international copyright and intellectual property treaties. However, strict adherence to some commonly held international copyright principles, such as fixation and authorship of sound recordings,114 may not adequately reflect Nigeria’s socio-economic developmental goals. The USA, for instance, has historically maintained intellectual property policies that best reflect its own interests, as opposed to towing a global 110 Section 304 (c) (5) Copyright Act 1988 (USA). 111 Section 304 (c) (2) Copyright Act 1988 (USA). 112 Under the US Copyright, intention to revert grants of copyright must be notified

not less than two years or more than ten years before the intended date of reversion, section 203 (a) (4) (A) Copyright Act 1976 (USA). 113 Wong, KC, “Beyond the Gap: A Practical Understanding of Copyright’s Termination of Transfers Provisions”, pp 620–621. 114 Supra, Sect. 6.3.

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intellectual property vision. This is clear from its gradual acceptance of moral rights, a process which has been described as being characterised by ‘creeping progress’.115 Moreover, the USA did not join the Berne Convention until 1989, and it has also been argued that in the early years of US nationhood, it did not have regard for the copyright of foreign authors.116 Participation in international trade requires adherence to certain legal standards and principles, but when instruments regulating such trade provide partial or total wiggle-room for implementation, it is important for Nigerian policy making to evaluate the developmental impact of such instruments for Nigeria, and to act accordingly. Although acceding to certain international treaties will serve some political and economic benefits to Nigeria, formulating local copyright laws and policies that best represent Nigeria’s developmental needs may be critically needed for cementing a position in the current intellectually driven global economy.

9.4

Conclusion: Proposed Amendment Bill

This book identified that the relationship between performing authors and recording companies can place a strain on the creative autonomy of performing authors, through the avenues of copyright law, new business platforms and contract terms. While the immediately preceding chapters discussed the ramifications of such problems, this chapter set out to proffer legislative and policy recommendations that may serve to salvage the creative autonomy of performing authors in the Nigerian popular music industry. The figure below depicts suggested legislative phrasing for amendments reflecting the recommendations made in this chapter.

115 Vetrone, AV, The Legal and Moral Rights of all Artists, op. cit., p 51. 116 Meng, B, “Property Right or Development Strategy: Protection of Foreign Copy-

right in 19th Century America and Contemporary China” (2007) 11 Media@LSE, Electronic Working Papers, pp 1–23, available at http://eprints.lse.ac.uk/4034/1/Pro perty_Right_or_Development_Strategy.pdf (accessed 27 February 2020), p 3.

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Recommended Amendments to the Nigerian Copyright Act

WHEREASa. Empirical research has identified threats occasioned to performing author’s creative autonomy in the context of their interactions with record label executives; b. The importance of creative autonomy has been established as an intrinsic element of the deontological theories that undergird copyright; c. Creative autonomy has been established as a prerequisite for socio-cultural and economic development in the UNESCO Convention 2005, to which Nigeria is a party; and d. The Nigerian Constitution establishes that ‘the State shall direct its policy towards ensuring… the promotion of a planned and balanced economic development’, in section 16 (2) (a) Nigerian Constitution 1999: NOW THEREFORE, the following amendments to the Copyright Act C28 Laws of the Federation of Nigeria 2004 are herein proposedSection and subject

Original clause

Suggested amendments

1.

Section 12 (1) (a) (regarding moral rights)

The author of a work in which copyright subsists has the right to claim authorship of his work…

2.

Section 12 (2) (regarding moral rights)

The rights referred to in subsection (1) of this section, are perpetual, inalienable and imprescriptible.

TO BE REPLACED BYThe author of a work in which copyright subsists has the right ‘…to be identified as author of their work…’ CLAUSE TO BE INCLUDED‘….and waivers of such rights made in consideration for monetary or other payments in kind shall be null and void ab initio’.

(continued)

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(continued) Section and subject 3.

4.

Original clause

‘Author’ in the case of a sound recording, means the person by whom the arrangements for the making of the sound recording were made, except that in the case of a sound recording of a musical work, ‘author’ means the artist in whose name the recording was made, unless in either case the parties to the making of the sound recording provide otherwise by contract. Section 10 (3) (Regarding Where a literary, artistic work-for-hire contracts) or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication… the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of copyright in the work…

Section 51 (1) paragraph 7 (regarding authorship of sound recordings)

Suggested amendments TO BE DELETED‘…unless in either case the parties to the making of the sound recording provide otherwise by contract’.

PARAGRAPH TO BE INCLUDED‘In relation to sound recordings and authors who perform their own works, work-for-hire clauses in recording contracts shall be voidable, in so far as the working conditions in such employment contracts do not satisfy the requirements of the Labour Act L1, LFN2004 (Nigeria), having regard to the socio-economic conventions and comforts in the popular music industry.’

(continued)

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(continued)

5.

Section and subject

Original clause

Suggested amendments

Paragraph 2, Third Schedule (regarding statutory licence rates)

Subject to the following provisions of this Schedule, the royalty mentioned in sub-paragraph (d) of Paragraph 1 of this Schedule shall be of an amount equal to a percentage of the ordinary retail selling price of the record calculated in the prescribed manner.

CAPITALISED PHRASE TO BE INCLUDEDSubject to the following provisions of this Schedule, the royalty mentioned in sub-paragraph (d) of Paragraph 1 of this Schedule shall, ‘AT THE MINIMUM,’ be of an amount equal to a percentage of the ordinary retail selling price of the record calculated in the prescribed manner.

5. The amendment of section 11 on assignments and licences, by the inclusion of paragraphs three, four and five which would read thus(3) Commercial assignments of copyright shall be effective only upon the payment of consideration in monetary terms or in kind by the assignee, receipt of which must be acknowledged in the deed of assignment. Royalty sharing formulas in recording contracts shall not be construed as a payment in kind. (4) Transfers of authors’ rights shall specifically mention each of the assigned rights being transferred in the instrument of assignment. It shall state the field of exploitation of the rights and shall define its scope, purpose and duration.117

117 Article L131-3 Intellectual Property Code 1992 (France).

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(5) Ambiguous terms in copyright exploitation contracts shall be interpreted having regard to the purpose of the contract,118 and shall not undermine the author’s legitimate interests. 6. The adoption of a provision for copyright reversion that states thusa. With regard to any copyright work other than a work made for hire, the exclusive or non-exclusive grant of an assignment or license of copyright, or of any right within a copyright, executed by an author, except as a testamentary disposition, is subject to termination and reversion under the following conditions119 : (i) Where the grant was executed by one author, termination of the grant may be effected by that author or, if the author is dead, by their heirs. Where the grant was executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; and if any of such authors is dead, the termination interest of such author may be exercised by a representative of his or her heirs.120 (ii) Termination of the grant may be effected where an assignee that holds an exclusive exploitation right does not exercise the right or does so insufficiently and significantly undermines the author’s legitimate interests. Such termination may be effected at the end of two years from the date of execution of the grant. This right shall not apply if the non-exercise or the insufficient exercise of the granted right is primarily due to conditions which the author can be reasonably expected to remedy.121

118 Article 31 (5) UrhG 1965 (Germany). 119 Section 203 (a) Copyright Act 1976 (US). 120 Section 203 (a) (1), ibid. 121 Article 41 (1) UrhG 1965 (Germany).

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(iii) Whether or not the author’s interests have been impaired as in clause (ii) of this section, a general termination of grants may be effected at any time during a period of five years, beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant, or at the end of forty years from the date of execution of the grant, whichever term ends earlier.122 (iv) The termination shall be effected by serving an advance notice in writing, signed by the author, their duly authorized agents, or their heirs; it shall state the effective date of the termination, and shall be served at least six months before that date. (v) The notice shall comply, in form, content, and manner of service, with requirements that the Director-General of the Nigerian Copyright Commission shall prescribe by regulation. (vi) The right of termination shall not be waived in advance, or be transmitted for payment in monetary or other terms; and the right may be exercised notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.123 b. Upon the effective date of termination, all rights under the Act that were covered by the terminated grants shall revert to the author, authors, or their heirs as the case may be, except in the following scenario-

122 Section 203 (3) Copyright Act 1976 (US). 123 Section 203 (a) (5), ibid.

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(i) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.124

124 Section 203 (b) (1), ibid.

CHAPTER 10

Summary and Conclusions

This book identified the significance of measuring creativity for the purpose of copyright law. With specific reference to the developmental progress of the Nigerian popular music industry and the international growth of the Afro-Pop or Afrobeats genre, the book discussed the concern that seeks to prevent homogeneity in musical works, and it underscored the link between homogenous works and impaired creative autonomy. Establishing the background, scope and limitations for the book, it undertook empirical analysis of participants in the Nigerian music industry, and then analysed Nigerian copyright law and contract practices viz a viz relevant provisions and practices in international copyright systems and music industries. The book extracted the concept of creative autonomy as a measurable factor from an otherwise esoteric notion of creativity, and set out to evaluate the status of creative autonomy for performing authors, in order to identify threats to their creative autonomy and to proffer suggestions for its preservation. To set the scene for the discussions in this book, the traditional structure of the international popular music industry was discussed within the context of the contributions of executive roles and creative roles. It was necessary to identify and elucidate the roles that conduct the interactions with which this book is concerned and the peculiarity of the performing

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author’s position. The book then traced the unique structure and historical development of the Nigerian popular music industry, and identified similar structures that exist there. Further analysis of the Nigerian popular music industry was based on empirical data collected for the purpose of this book. Chapter 4 of the book used mixed methods to ascertain the status of creative autonomy among performing authors in the Nigerian popular music industry, and the findings made in the chapter reflected a precarious position for the creative autonomy of performing authors. It was observed that record labels often have preconceived notions of commercial value which they attach to music, and that they generally require or encourage performing authors to adjust their authorial processes to conform to these notions. It was noted that continued interference from record labels and their commercial formulas in the authorial processes of performing authors can lead to a vicious circle of stifled authorship and reduced cultural output. This appears similar to the notion that, ‘the historical evolution of copyright from the days of the Stationers’ Company had pitched capital against labour’.1 This dichotomy in goals necessitated an analysis of copyright justification theories in order to identify the theoretical position of creative autonomy, and to provide a springboard for economic analysis of substantive copyright law, undertaken later on in the book. Accordingly, Chapter 5 considered the theoretical foundations of copyright law in order to establish the justificatory framework for the concept of creative autonomy. On one hand, it discussed the deontological arguments of Locke, Kant and Hegel, and identified the concept of creative autonomy within their theories and within the framework of human rights. On the other hand, and in distinction from deontological theories, consequentialist theories were seen to be concerned with the question of value from the standpoint of competing priorities. The concept of creative autonomy was not seen as an essential feature of consequentialist theories, which have been classically framed as a trade-off between societal access to copyright works and providing incentives for authors. Nevertheless, detailed analysis of consequentialist theories showed a recurring reference to a basic welfare function, and this chapter argued that creative autonomy is the basic welfare function requisite for the commercial and creative activities that underpin vibrant, sustainable cultural industries. It 1 Asein, JO, “Redefinition of First Ownership Under Nigerian Copyright Law; Lessons from an Inchoate Mutation”, op. cit., p 302.

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therefore argued that creative autonomy belongs in the currently dual formula that represents economic analysis of copyright law, as it serves as a useful control for understanding and applying the formula. Indeed, similar to this chapter’s assessment of creative autonomy, an analysis of copyright and cultural works concluded thusOur own analysis suggests that the rights conferred by copyright legislation seem not to give an incentive to produce or perform. The fact of their existence was not the driver for creation: that was the personal commitment to an art form and a desire for self-realization.2

On the basis of the empirical observations made and the data analysed in Chapter 4, this book identified the three broad themes of copyright, new business models and contract, along which lines certain provisions and practices had posed serious challenges to performing authors’ exercise of creative autonomy. Chapter 6 analysed problematic aspects of copyright law, Chapter 7 addressed problems for creative autonomy in new business practices in the music industry, and Chapter 8 considered problematic elements in the dynamics of recording contracts. More specifically, Chapter 6 considered peculiarities in copyright law that can inhibit performing authors’ exercise of creative autonomy at the pre-fixation and fixation stages of their works. It highlights the unique challenges that can occur for performing authors who may create and fix their works in a tangible format simultaneously, and the challenges that can occur when there is an interval between creation and the authorised fixation of a work. It then discussed the implications of the legal provisions for authorship of sound recording copyright, and how this provision can affect the rights of music authors. With regard to business practices and platforms, Chapter 7 showed how certain business tools in the music industry may be utilised in ways that can undermine the exercise of creative autonomy for performing authors. It argued that with the use of the internet and television talent shows in scouting for new performing authors, scouts may prioritise attributes of stardom over musical skill, and consequently de-emphasise creative autonomy for performing authors. It also showed that the use of 360 deals has the potential to stultify creative autonomy, as the 2 Waelde, C and Schlesinger, P, “Copyright and Cultural Work: An Exploration”, op. cit., p 25.

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performing author’s career may be considered more viable for the associated business their careers procure, rather than for authentic creative expression. The chapter argues that for each of these platforms, emphasis appears to be placed on perceived star quality as against authorial or performing talent. Certain aspects of the dynamics of contract practices were analysed in further detail in Chapter 8, which showed that some contractual terms commonly used by record labels can dominate performing authors and encroach upon their creative autonomy. The problems associated with assignments of copyright and work-for-hire contracts were examined as avenues through which performing authors may typically lose creative control over the direction of their careers. It was also noted in this chapter that unfair bargaining terms in recording contracts appear to have become the norm, with performing authors who are unable or unwelcome to negotiate their recording contracts. The specific avoidance of consideration was identified in recording contracts that feature controlled composition clauses, and in the assignment of publishing rights for only a share in royalties. The validity of such contracts is, at best, questionable under contract law, as consideration is an essential element of a valid contract. Assigning copyright gratis in business deals in the music industry was also shown to impact the creative autonomy of performing authors who may be caught in the conundrum of wanting to perform their works, and yet eager to avoid being short-changed financially. In light of the problems identified for the creative autonomy of performing authors, Chapter 9 proposed policy and legislative recommendations to alleviate the hardship occasioned to performing authors, and consequently increase the cultural output and economic viability of the Nigerian popular music industry. It concluded with a draft copyright amendment bill reflecting the legislative recommendations made in the chapter. This book does not sanctify the performing author or demonise the record label. Rather, it analyses the Nigerian music industry on the platform of economic analysis of law, and the result of this analysis suggests that the findings may be applicable for music industries with similar legal systems, or similar developmental statuses. It therefore provides lenses through which music executives, performing authors, academics and governments can study the merits of business and industry on a platform that could proffer richer results for all involved.

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Index

A Adorno, TW, 51, 52 Afrobeat, 77, 85, 92–94, 271 Afro-Pop, 6, 11, 12, 77, 85, 92–95, 203, 271 Alaba International Market, 82, 85 Ambiguous terms, 237, 238, 267 Amendments, 22, 88, 89, 154, 197, 211, 216, 220, 221, 242, 243, 252, 264, 265, 267, 274 Anglo-American, 9, 14, 22, 258, 259 Artist and Repertoire (A&R), 15, 55–62, 68, 70, 198, 200 Asserting rights, 151–152 Assignments, 42, 63, 70, 111, 112, 135, 215–219, 221, 223, 226, 232, 233, 239, 247, 248, 254, 257, 260, 263, 267, 268, 274 Authorial economic rights, 38 Authorial processes, 7, 34, 86, 100, 103, 108, 109, 116, 125, 131, 149, 157, 178, 213, 261, 272

Authors, 3, 7–9, 16, 18, 19, 27–29, 31–39, 42, 44, 46, 49, 52, 54, 55, 57, 59, 63, 66, 73, 88, 90, 105, 109, 114–116, 123, 125, 134, 136, 139, 142–144, 149–151, 153, 154, 156, 157, 159, 166, 168, 170, 176, 178, 179, 184, 186–189, 191–195, 201, 211, 213, 217–219, 222, 229, 234, 235, 238, 241–243, 251–254, 256–261, 263–269, 272, 273

B Bankole Sodipo, 134 Berne Convention, 30, 38, 112, 154, 156, 181, 192, 256, 264 The big four, 60, 64, 71 British, Performing Rights Society (PRS), 89 Business practices, 17, 21, 78, 174, 197, 212, 213, 226, 249, 273

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2020 M. W. Gani, Creative Autonomy, Copyright and Popular Music in Nigeria, https://doi.org/10.1007/978-3-030-48694-5

305

306

INDEX

C Coase, R.H., 158, 164, 165 Collective administration, 73–75, 82, 89, 116 Commercial ideals, 133, 207 Comparative studies, 14 Consequentialist, consequentialism, 9, 10, 17, 140, 146, 147, 157–160, 162, 164, 167, 170, 171, 195, 272 Consideration, 19–21, 23–25, 30, 43, 98, 101, 103, 105, 106, 117–119, 124, 125, 127, 131, 135, 146, 159, 163–165, 167, 171, 187, 188, 208, 211, 214, 219, 223, 225, 226, 231–233, 239, 255, 260, 265, 267, 274 Contracts, 9, 10, 19, 23, 28, 55, 58, 59, 63, 67, 71, 83, 104, 111, 112, 121, 125, 128, 130, 132, 135, 150, 171, 174, 180, 189, 190, 203, 209–214, 216–219, 221, 223, 225–231, 233, 236, 238–241, 243–245, 247, 248, 251, 253–255, 257, 259, 261–264, 266, 268, 271, 273, 274 Controlled compositions, 233, 235, 239, 248, 274 Copyright, 3, 4, 6–10, 12, 14, 17–33, 35–38, 42–44, 46, 50, 51, 54, 59, 61, 62, 69, 73, 74, 77, 83–91, 95, 101, 111–116, 121–126, 128, 130, 135–137, 139, 140, 143, 144, 146, 147, 150, 154, 155, 157–159, 161–163, 165–171, 173–181, 183, 185–194, 211, 213–223, 225–229, 232–234, 239–246, 248–254, 256–269, 271–274 Copyright education, 243, 245, 250

Copyright exploitation contracts, 18, 100, 110, 116, 211, 215, 218, 225, 226, 229, 231, 247, 254, 268 Copyright law, 3, 7–10, 14, 16–25, 28–35, 37, 38, 42, 46, 47, 51, 68, 87, 97, 100, 112–114, 117, 121–123, 125, 126, 128–130, 134–136, 140, 146, 154–156, 158, 159, 161, 163, 166, 167, 169–171, 173–175, 181–188, 190, 192–195, 197, 210, 211, 213, 214, 218–222, 224–226, 229, 234, 239, 241, 243, 245, 246, 248–250, 252, 253, 256, 260, 262–264, 271–273 Copyright Society of Nigeria (COSON), 89–91 Creation, types, 7, 24, 32, 49, 52, 55, 60, 100, 122, 143, 144, 154, 157, 163, 175–177, 180, 183, 184, 187, 192, 194, 200, 210, 214, 273 Creative autonomy, 1, 3, 4, 7, 9, 10, 12, 14–17, 19, 21, 23, 28–31, 33, 35, 37, 42–44, 46, 47, 52, 58, 59, 64, 72, 75, 95–97, 103, 105, 109–111, 113, 114, 116, 117, 126, 129, 134, 136, 137, 139–151, 153, 154, 156, 157, 159, 162–165, 167, 170, 171, 173–175, 177, 180, 184, 189, 191, 192, 195, 197–199, 202–204, 207, 210–217, 220, 224, 227, 229, 231, 235–243, 245–248, 251, 253–256, 261–265, 271–274 Creative autonomy, definition, 28, 96, 117, 139, 142, 145, 148, 153, 156 Creative autonomy, ideals, 116, 139

INDEX

Creative control, 109–111, 116, 121, 132, 274 Creative process, 10, 17, 19, 25, 27, 57, 86, 104, 105, 109, 117, 129, 157 Creative roles, 47, 54, 66, 75, 271 Creativity, creative, 3–7, 11, 12, 14, 19, 23–27, 33–35, 47, 51, 53, 54, 68, 72, 75, 77, 86, 92, 95, 100, 101, 103, 105, 108, 110, 117, 126, 129, 131–133, 142, 144–146, 150, 152, 162, 166–169, 187, 190–192, 197, 202, 203, 212, 217, 230, 232, 236, 238, 243, 245, 247, 250, 253, 261, 262, 271, 272, 274 Cultural diversity, 144, 148, 157 Cultural works, 30, 37, 149, 166, 167, 169, 174, 253, 260, 273

D 360 deals, 65, 198, 208–211, 273 Deontological theories, 10, 17, 140, 146, 157, 171, 177, 265, 272 Development, 10–13, 15, 16, 20, 21, 26, 32, 50, 51, 57, 62, 77–82, 92, 95, 145, 169, 182, 185, 198, 199, 204, 208, 221, 226, 227, 234, 263–265, 272

E Electricity, 111, 207 Empirical data, 23, 97, 139, 272 English case law, 22, 33 Executive roles, 47, 53–56, 65, 75, 271 Explicit welfare function, 51, 163, 165

307

F Fixation, 7, 20, 29, 44, 175–185, 195, 263, 273 Fixation, definition, 180, 182 Foreign labels, 80 Freedom of expression, 139, 141, 145, 153 Frith, S., 2, 3, 18, 50, 52, 53, 149–152, 158, 164, 185, 190, 200, 201, 204, 250

G Gramophone, 50, 66, 79 Guidelines, 17, 25, 226, 233, 243

H Hegel, G.W.F., 146, 151–153, 157, 177, 272 Homogenous, 4, 6, 16, 19, 26, 28, 30, 35, 37, 48, 162, 271 Human rights, 139–143, 146, 153, 163, 171, 242, 272 Hypothesis, 16

I Idols, 198, 201, 203, 204 Inalienability, 156, 193, 194, 260 Incentives, 26, 159, 167–171, 253, 272 Independent producers, 56, 64, 70–72, 190, 200, 252 The internet, 20, 21, 58, 60, 68, 98, 111, 154, 156, 192, 194, 199, 204, 205, 207, 212, 273 Interviews, 11, 23, 97–99, 115, 116, 123, 129, 130, 133, 206

J Jesse Jagz, 93, 130

308

INDEX

Junior and Pretty, 11, 80, 92 Jurisdiction, 18, 46, 155, 181, 186, 259

K Kaldor-Hicks, 158, 163, 164 Kant, I., 146, 149–151, 153, 156, 157, 177, 272

L Legislative, 17, 22, 53, 145, 154, 158, 182, 183, 205, 222, 226, 227, 234, 236, 239, 240, 242, 243, 250, 251, 253–255, 258, 260, 262–264, 274 Licences, 62, 73, 75, 85, 89, 91, 111, 193, 194, 208, 213, 215, 216, 219, 220, 226, 233, 234, 248, 251, 254, 257, 261, 267 Local, 12, 15, 16, 22, 32, 55, 70, 80, 81, 83, 92–94, 103, 184, 200, 264 Locke, J., 146–149, 152, 157, 158, 272

M Maikori, Audu, 122 Money-making, 99, 117 Monopolies, 23, 30, 74, 91, 95, 166, 170, 211, 234, 245, 258 Moral rights, 9, 20, 114, 122, 128, 134, 143, 144, 153–157, 175, 192–195, 205, 219, 254, 264, 265 Moral rights, transmission, 20, 192, 193 Multiple rights deals, 199, 208–212 Musical Copyright Society of Nigeria (MCSN), 89–91 Music platforms, 197, 212

Music publishing, 50, 60, 62, 63, 69, 124, 200

N National copyright goals, 242, 263 Negotiation, guidelines, 243, 247 Negotiations, 70, 109, 112, 125, 168, 183, 187, 189, 211, 224, 228–232, 235, 243, 244, 247, 254, 255 Negotiation, terms, 109, 112, 221, 231, 255 Nigerian Copyright Commission (NCC), 22, 42, 84, 85, 87–90, 95, 233, 234, 269 Nigerian music industry, 1–6, 10, 12, 14, 15, 18, 21, 46, 49, 77, 78, 80–83, 86, 90, 95, 116, 121–123, 128, 129, 204, 246, 271, 274 Nigerian Pidgin, 77, 80, 93

O Originality, 29–37, 147, 251 Ownership, 18, 29, 38, 60, 143, 148, 180, 183, 186, 187, 189–191, 226, 248, 249, 251, 272

P Pareto, 158, 162, 163 Performers, 3, 7, 16, 19, 29, 42–44, 54–57, 59, 63, 65–68, 70, 112, 134, 168, 183–186, 188, 198, 199 Performers’ rights, 7, 19, 42–45, 176, 183, 184, 191, 249, 252 Performing author, 1, 3, 4, 8–10, 12, 14–21, 23, 25, 28, 29, 33, 36, 37, 42–44, 46, 51, 52, 55, 58, 59, 61, 63, 64, 66, 68, 69, 72,

INDEX

309

75, 78–87, 92, 95–121, 123, 125–130, 132–136, 139, 145, 154, 171, 173–175, 177–180, 182–184, 187–195, 197–224, 227–229, 231–256, 259–262, 264, 265, 271–274 Performing authors, selecting, 57, 118, 206 Performing Musicians Employers’ Association of Nigeria (PMAN), 81, 188, 245, 246 Piracy, 6, 80, 82–84, 114, 115, 122 Policy, 3, 15, 17, 18, 24–26, 74, 163, 171, 174, 211, 214, 227, 240, 242–244, 263–265, 274 Popular music, definition, 47–49, 180 Popular music industry, 2–4, 8–10, 12–20, 26, 29, 36, 37, 42–44, 46, 47, 50, 52, 53, 65, 68, 75, 77–79, 82, 92, 96, 97, 99–101, 105, 107, 111, 112, 114, 115, 117, 124–126, 128–130, 133, 134, 136, 137, 139, 173, 174, 177, 194, 200, 205, 207, 211, 214, 221, 227, 229, 234, 236, 239, 241, 242, 246, 253, 262, 264, 266, 271, 272, 274 Pre-fixation, 175, 273 Public goods, 73, 162, 166–168 Public sympathy, 243–245

250, 252, 255, 256, 260–262, 264 Recording contracts, 3, 18, 29, 55, 59, 61, 63, 67, 69, 98, 104, 109–112, 121, 125, 133, 136, 179, 189, 190, 192, 199, 203, 207–214, 217, 220–224, 228–230, 232, 233, 235, 237– 240, 244, 247, 248, 254–256, 260–262, 266, 267, 273, 274 Record label executives, 3, 4, 10, 16, 51, 54, 55, 61, 78, 82, 97–101, 117, 118, 120, 121, 123, 125–129, 132, 133, 136, 190, 206, 229, 237, 238, 261, 265 Record labels, 6, 9, 10, 16, 17, 21, 29, 36, 42–44, 52, 55, 59, 60, 63–65, 68, 70, 78, 80–82, 84, 86, 100, 103–106, 108, 109, 111, 116, 119–121, 125–130, 132–136, 189–191, 199, 202, 205–207, 210, 221, 222, 224, 228–232, 236, 237, 239, 240, 243–245, 247, 252–254, 260, 261, 272, 274 Reversion clause, 219, 254, 257–260, 262, 263 Reversion, economic practicality, 259 Royalty sharing, 63, 67, 135, 208, 233, 255, 267

R Recommendations, 15, 17, 53, 108, 126, 231, 240, 242, 243, 255, 263, 264, 274 Recording companies, 11, 15–17, 54–61, 63, 64, 69, 72, 80, 82, 85, 94, 174, 185, 189, 190, 198–202, 204–206, 208–212, 216, 217, 220, 221, 223, 225, 232, 233, 235, 242, 247, 248,

S Selecting songs, 105, 106, 118, 120 Self-expression, 97–99, 101–103, 116–118, 124, 127, 136, 150, 201, 205 Singer-songwriters, 1, 3, 69 Song writing, 69, 101, 102, 104 Sound recordings, authorship, 29, 42, 175, 183, 186–189, 252–254, 260, 261, 263, 266, 273

310

INDEX

Sound recordings, bargaining, 189–191 Stakeholders, 15, 16, 78, 98–101, 119, 123, 125–129, 259 Sternberg and Lubart, 27, 145 Structure, 1, 11, 13, 15, 16, 19, 22, 46, 47, 52–56, 60, 61, 71, 72, 75, 77, 78, 80, 86, 92, 97, 123, 190, 243, 271, 272 Studio etiquette, 248 Sustainable development, 14, 16 T Television talent competitions, 199, 201, 207, 212

U Unfair bargaining terms, 211, 214, 217, 225, 227, 274 Unfair terms, 227, 228, 230 Utilitarianism, 159–161

W Work-for-hire contracts, 220–222, 224, 266, 274

X X factor, 118, 201, 202