By Samuel Ugwumba*
In Part 1 here, I argued for what I have termed a ‘Governance Theory of Copyright.’ The core features of this emergent perspective are the elevation of cultural works as the central subject matter of copyright; the placement of development as the lodestar of copyright law and policy; the incorporation of a regulatory framework that goes beyond copyright law; and a liberalisation of the regime for protecting entitlements.
In this post, I briefly apply this perspective to the case of sound recordings as regulated by Kenyan and Nigerian (K&N) Copyright laws; the next post will examine the case of GIFs (Graphic Interchange Format).
What are Sound Recordings?
Sound recordings are either a subject matter of copyright or neighbouring rights in some jurisdictions but they fall under the former in K&N copyright laws (sections 22&7 respectively). A sound recording is simply a recording of a sound. This applies exclusively to aural fixations of the sound in K&N (s.2 &51). So if the fixation has a visual component, it is not a sound recording. In general, sound recordings implicate two copyrights because in most cases it is a recorded performance of either a literary or musical work. Suppose I deliver this post as a speech in a conference and someone records only the speech, the resulting sound recording is not only a reproduction but also a derivative work. It is a reproduction because it reproduces the speech though in another material form; a derivative work because it is based on my speech, a copyrightable expression. In other words, the sound recording is a recorded performance of my speech. The same applies to the recorded performance of a musical work, mutatis mutandis.
Suppose I want to record a song that was previously recorded (i.e. make a cover), what is the law in K&N? Before answering, let me briefly explain what I mean by liberalising the regime for protecting entitlements.
I argued in my previous post that a governance theory of copyright would provide and promote alternative conceptions of property in its arsenal for governing cultural works. In US jurisprudence, the entitlement frameworks of property and liability rules gained ascendancy as a result of the law and economics movement. Property rules operate on exclusion whereas liability rules are based on compensation ex post. An example of the latter is compulsory licensing i.e. a license in which the licensee enjoys the copyright without the consent of the copyright owner but receives a payment set by law. These entitlement frameworks roughly approximate my concern for alternative property norms although for a different reason. Whereas the property and liability rules are employed to achieve efficiency, I think it important to go beyond this value.
Back to the question: the answer under Nigerian law is that copyright does not include the right to control “the making of a sound recording of a literary or musical work, and the reproduction of such a sound recording by the maker or under license from him, where the copies thereof are intended for retail sale in Nigeria and the work has already been previously recorded under license from the owner of the relevant part of the copyright, whether in Nigeria or abroad, subject to such conditions and to the payment of such compensation as may be prescribed.” (S. 6(1)(i) of the Second Schedule). There is no comparable provision in the Kenyan copyright Act. The US copyright Act has a similar provision for compulsory licensing of musical works (s. 115, Copyright Act 1976). But the Nigerian law however is generous in that it extends to literary works. The gist of this Nigerian provision on compulsory licensing of musical works for sound recording is that anyone can make a recording of a musical work without the permission of the copyright owner provided (1) a prior recorded performance of the musical work exists on permission from the copyright holder and (2) the determined compensation, including other formalities, is paid. As is clear, this provision does not permit one to make a video recording of a musical work. In such cases, a synchronisation license is required.
So is this provision conducive to development having in mind that development is multifaceted (economic, social, cultural and human)? Should Kenya reform its copyright law to include it? I leave the reader to answer these questions while I provide some guidance below.
Suppose we accept that the goal of copyright law is cultural wealth-maximisation, what does this require us to do? It requires maximising not only the number of cultural works produced but also the diversity in works produced and consumed. The latter is often taken for granted in copyright analysis but it is essential in welfare maximisation. A diverse range of works maximises welfare because it adds to consumer and producer surpluses. Suppose I produce a cover song of a Kenyan or Nigerian artist and market it to consumers who buy it, a surplus has been generated; some consumers get what they want (i.e. satisfy their preferences) while the producer is better off. Additionally, the copyright holder of the musical work is not worse-off than in a situation where the compulsory licensing scheme is abolished. In law and economics speak, this situation is said to be Pareto-efficient. The crucial question, however, is what entitlement framework or property norm will take us to this position: property or liability rule?
Suppose, however, our objective is cultural development. In this context, it is a regime that allows people to engage with cultural works, then the crucial question is still the same as above. What property norm allows people to engage freely with cultural works? To be sure, the boundaries between cultural and other aspects of development are not walled up; rather they are interconnected.
In the end, the question whether a compulsory licensing scheme for sound recordings of musical works is conducive to development is a contextual one. My objective has not been to provide a definitive answer but rather to provide the tools in resolving such issues. The answer and outcome will differ from country to country but it is important we have the analytical and conceptual frameworks that supply the tools for analysing these issues. That is what the governance theory of copyright law hopes to achieve.
*Samuel Ugwumba is a Ph.D candidate and University College Cork Law and Business scholar researching on copyright and music. Follow him on Twitter @samwilbanks