MUSIC STREAMING IN NIGERIA: HOW STREAMING SERVICES MAY GET CAUGHT IN COPYRIGHT BATTLES
With the rise in content streaming, several articles and think pieces have been written on the copyright issues that arise in streaming, especially streaming via video-on-demand (VOD) platforms. There has also been substantial attention paid to how artistes, songwriters and music producers may infringe upon other artistes’ copyright without even realising it as a result of the limitless access to music that is provided by music streaming platforms like Spotify, Boomplay, Apple Music, etcetera.
However, not enough focus has been directed towards music streaming platforms themselves and their susceptibility to copyright claims despite the increasing frequency with which music streaming services are dealing with such cases. In 2016, the Estate of acclaimed US musician, Prince, sued Jay Z’s Roc Nation and its streaming service, Tidal, on allegations of copyright infringement and failure to pay royalties, with the parties disputing the extent of the licence granted by Prince’s Estate to Tidal. In 2018, Spotify had to settle a $1.6 billion lawsuit with Wixen Music Publishing which alleged that the former was using songs without the requisite licence. In 2020, musician David Lowery filed a class action against Spotify for copyright infringement, seeking $150 million in damages. As recently as September 2022, Apple Inc. had to settle a dispute (dating back to 2019) that claimed that certain songs available on its streaming platform were pirated versions obtained from entities that were not the legal owners.
Nigeria is still relatively new to streaming, so there have hardly been any cases on the subject. But with the recent surge of streaming in Nigeria, especially with streaming services setting up shop in Nigeria, issues of copyright infringement in music streaming are bound to arise, and streaming services will not be left out of the loop. This article will discuss how music streaming platforms may find themselves in legal battles over copyright and how they can avoid copyright violations.
The World Intellectual Property Organisation defines copyright simply as a legal term used to describe the rights that creators have over their literary and artistic works. The Nigerian Copyright Act (Cap C28 LFN 2004, hereinafter “the Act”) recognises six categories of works eligible for copyright protection viz.: literary works, musical works, artistic works, cinematograph films, sound recordings, and broadcasts. Sections 6 to 8 of the Act provide a long list of the rights that copyright encompasses with respect to each category of work, including the rights to reproduce the work, publish the work, perform the work in public, produce, reproduce, perform or publish any translation of the work, distribute copies of the work to the public for commercial purposes, make a cinematograph film or a record in respect of the work, etc. Copyright is essentially an exclusive right of the copyright owner, and to encroach upon that exclusivity without a licence and outside the exceptions provided under law is an unlawful act that opens the perpetrator to liability. By section 15(1)(a) of the Act, to do or cause any person to do any act that is reserved for the owner of the copyright without the licence or authorisation of the said owner is to infringe on that owner’s copyright.
By reproducing, publishing and commercially distributing content to the public, whether to paying subscribers or to a non-paying audience, streaming platforms essentially participate in the copyright owner’s right to publish, perform and commercially distribute their work. Where the owner’s consent or authorisation is not obtained before such publication or distribution, the streaming service may be found liable for infringement. Even where the streaming service obtains the requisite consent but the owner of the copyright in that particular work also infringed on some third party’s copyright in the creation of their own work, the streaming service may be liable. Section 15(1)(c)) of the Act considers a person to be strictly liable for copyright infringement if they exhibit in public any article in respect of which copyright is infringed. Similarly, section 28(1)(g) provides that a performer’s copyright is infringed by a person who, in the course of trade or business and without the performer’s consent or authorisation in writing, distributes or displays for sale or hires a recording of a performer’s work which is an infringing recording. While the streaming service may not be the original violator, the third party whose copyright was infringed upon may prefer to sue the streaming service, whether alone or jointly with the original violator, especially when the streaming service has the deeper pocket or also made a profit from the unlawful use of the protected work.
Thus, obtaining the copyright owner’s authority, preferably in writing, is of paramount importance. However, it can be difficult to determine who exactly the copyright subsists, especially where there are multiple persons entitled to copyright in a particular work. This is, in fact, often the case in the music business. On its part, the Act separately recognises musical works and sound recordings as two distinct types of works protected under the Act. It defines musical works as any musical composition, irrespective of musical quality, and includes works composed for musical accompaniment, while sound recording is defined as the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with a cinematograph film. The Act also protects copyright in cinematograph films separately, and this includes music videos which many musics streaming services now publish via their platform. Music and album cover art are protected as artistic works. Even lyrics may be protected as literary works.
Under the law, the extent of protection depends on the category of work. Plus, in practice, all of these categories of protected works usually have different authors or copyright owners. For example, the composer and songwriter are generally entitled to copyright in the musical work while the producer and performer are entitled to copyright in the sound recording. There are also situations where the author does not in fact have a copyright. The law allows a person who commissions work to vest copyright in himself under a written contract even though they are not the author or creator. Where the streaming service obtains consent from the such author as opposed to the person who commissioned the relevant work under a contract vesting the latter with copyright, the streaming service may find itself at the defending end of a lawsuit for copyright infringement. Similarly, where there is no such right vested in the person who commissions the work, leaving the author or creator with copyright in the work, and the streaming service obtains consent from the person who commissions the work, it may also constitute infringement.
To distinguish themselves from their competitors and attract a wider range of subscribers, streaming services are now going beyond just publishing or distributing third-party content on their platforms. While this trend is more popular among VOD platforms, music streaming services have begun intensifying their efforts in diversifying the services they provide to their subscribers. They are opening digital stores for the sale of branded merchandise (like Boomplay Mall), creating editorial content (such as Boomplay’s Buzz and Spotify Radar), and like VOD platforms before them (and even digital bookstores like Amazon), they have started working towards releasing original (commissioned) music. In 2019, the CEO of Spotify hinted that the Platform is investing in more original content that will broaden its appeal. We’re already seeing the fruits, especially with products like original Spotify podcasts, and so on. These new services can also open streaming services to liability where such original or editorial content infringes upon the copyright or other intellectual property of third parties. Editorial content, for example, can be plagiarised. Podcasts can use copyrighted musical works or sound recordings unlawfully. Merchandise can also infringe on registered trademarks and industrial designs. Even music streaming technology used by a streaming service can be the subject of a registered patent.
Considering the difficulty involved in identifying the true owner of the copyright in a protected work, especially since copyright registration is not a requirement of law and copyright subsists in an eligible work from the moment it is fixed in a definite medium of expression from which it can be communicated, it is advisable to consult an expert, preferably an intellectual property lawyer, who can carry out due diligence and ensure that all required consents are obtained. An IP lawyer can also help distinguish between unlawful use and fair use of a protected work, navigate the exceptions permitted by law, and draft ironclad licensing agreements that protect the streaming service from liability, especially where the streaming service does not wilfully commit or participate in infringement. Furthermore, considering the global reach of music streaming, it is important to consider what country’s laws apply as the applicable law will determine the extent of copyright protection and the available defences.
With music streaming, the global music industry has undergone a massive change in terms of distribution and consumption, and intellectual property rights have become more difficult to navigate. Businesses dealing with music streaming must therefore be extra careful in order to avoid copyright infringements.
 Section 1(1) of the Act.
 Section 51 of the Act.
 See section 10(2) of the Act.
 Section 1(2) of the Act.