CRITICAL EXAMINATION OF PERFORMANCE RIGHTS AND THEIR PROTECTION UNDER NIGERIAN LAW
By Omaga Emmanuel and Obi Ivon Chineze
INTRODUCTION
Artistic expression is inextricably interwoven with cultural identity and is increasingly becoming a significant contributor to national economic advancement. The law functions both as a shield for content creators, such as musicians, scriptwriters, spoken word artists, comedians, dancers, and other performers, and as a sword against the unauthorized exploitation of their intellectual works. This legal protection is most vividly articulated within the framework of performance rights, a critical yet frequently underappreciated aspect of copyright law. These rights transcend mere legal formalities; they constitute essential legal mechanisms that ensure Nigerian creators derive tangible economic benefits from their creative endeavors in a rapidly evolving, digitally interconnected world.
This article undertakes a critical appraisal of the legal construct of performances and performers’ rights, examining the nature, scope, and enforceability of these rights within the Nigerian legal framework. It also elucidates the contours of what constitutes an infringement of such rights and proffers pertinent legal and policy recommendations.
Generally, Intellectual Property Law safeguards creations of the intellect, including inventions, literary and artistic works, industrial designs, and distinctive signs or symbols used in commerce. It confers exclusive proprietary rights upon creators, thereby incentivizing innovation and creativity by ensuring creators can derive commercial value from their works.
The four cardinal categories of intellectual property rights include:
1. Copyright – Protects original works of authorship, such as literary compositions, musical works, cinematographic films, and computer software.
2. Patents – Protect inventions and technological processes, granting exclusive exploitation rights for a specified term.
3. Trademarks – Safeguard distinctive signs, names, and logos used to identify goods or services.
4. Trade Secrets – Secure confidential business information such as proprietary formulas, processes, and methods that provide commercial advantage.
These legal regimes aim to balance the proprietary interests of creators with the broader public interest, fostering innovation while guarding against unauthorized appropriation.
Performance rights fall within the purview of copyright law and specifically protect the public performance, communication, reproduction, and broadcasting of protected works such as music, stage plays, films, and other artistic renditions.
“The enforcement of performers’ rights under Nigerian law may be pursued through both civil and criminal proceedings, depending on the nature and gravity of the infringement.”
DEFINITION AND CLASSIFICATION OF PERFORMANCE RIGHTS
Performance rights refer to the exclusive legal entitlements conferred upon a performer in relation to their performance. These include the rights to perform, record, broadcast, reproduce, and adapt their performances. In accordance with Nigerian law and relevant international treaties, such rights endure for a term of fifty (50) years from the end of the calendar year in which the performance first occurred.
A practical illustration is the globally recognized case involving the Estate of Michael Jackson v. The Walt Disney Company & ABC TV, where the unauthorized use of Jackson’s live performances triggered a lawsuit for copyright infringement emphasizing that performance rights subsist and are enforceable even posthumously.
The principal classifications of performance rights are:
1. Public Performance Rights – These grant the copyright holder the authority to determine how and when their work is publicly performed. Examples include the playing of music in public venues such as restaurants or the live staging of a play, both of which require prior authorization or licensing from the rights holder.
2. Broadcast Rights – These apply where performances are transmitted via radio, television, streaming platforms, or other digital media. Broadcasters are legally obligated to obtain licenses prior to airing copyrighted content.
SCOPE OF PERFORMERS’ RIGHTS UNDER NIGERIAN LAW
Performers’ rights are bifurcated into economic rights and moral rights, both of which are expressly protected under the Nigerian Copyright Act and international conventions such as the Rome Convention and the WIPO Performances and Phonograms Treaty.
A. Economic Rights
These are proprietary rights that enable performers to control and commercially exploit their performances. They include:
Right of Fixation: This encompasses the right to prohibit the unauthorized recording of live performances. For example, the clandestine streaming or recording of a live concert for upload on social media constitutes a violation of this right.
Right of Reproduction: This prohibits unauthorized copying or duplication of recorded performances. A typical infringement would involve the unauthorized replication and distribution of movies or music via illegal streaming platforms.
Right of Distribution: Performers retain the exclusive right to authorize the distribution or sale of their recorded works. For example, when audio clips of performers on platforms such as TikTok are exploited by corporate entities without acknowledgment or compensation.
Right of Rental and Lending: This pertains to the commercial rental of recorded performances. Performers can restrict both the duration and extent of such exploitation.
Right of Public Performance and Broadcasting: Performers hold the exclusive right to control how their performances are communicated to the public, whether via traditional broadcast or digital platforms.
B. Moral Rights
Moral rights protect the performer’s personal and reputational interests and are inalienable. These include:
Right to Attribution: The right to be identified as the originator of the performance. Any reproduction or distribution must acknowledge the performer as the author of the work.
Right to Integrity (Right to Object to Derogatory Treatment): This confers the right to object to any distortion, mutilation, or modification of the performance that could prejudice the performer’s honor or reputation. Parodies or satirical reinterpretations that portray the work negatively may fall within this category.
INFRINGEMENT OF PERFORMERS’ RIGHTS
Pursuant to the Copyright Act, the infringement of a performer’s right occurs where a person, without the prior written authorization or consent of the performer, does any of the following acts:
a) Makes a recording of the whole or substantial part of a live performance, unless such recording is reasonably required for research, private or domestic use;
b) Broadcasts or includes in a cable programme the whole or substantial part of the live performance;
c) Performs in public the whole or a substantial part of the performance;
d) Shows or plays in public the whole or a substantial part of the performance for commercial gain;
e) Broadcasts or includes in a cable programme a recording of the performance, knowing or having reason to believe that such recording was made without the performer’s consent;
f) Imports, otherwise than for private or domestic use, an infringing recording of a performance; or
g) In the course of trade or business, sells, offers for sale or hire, displays, or distributes an infringing recording of a performance.
ENFORCEMENT MECHANISMS UNDER NIGERIAN LAW
The enforcement of performers’ rights under Nigerian law may be pursued through both civil and criminal proceedings, depending on the nature and gravity of the infringement.
In civil proceedings, a claimant can sustain claims for damages for economic loss and injunctive relief to prevent continued infringement of the rights. The defendant can also be compelled through the instrumentality of the court to give account of profits derived from the unlawful use of the performance, while in criminal matters an individuals can be fined a penalty not less than ₦100,000 or imprisonment for a term not less than one (1) year, or both, but in case of corporate violators, the court can impose a fine not less than ₦2,000,000.
LIMITATIONS AND CHALLENGES IN THE PROTECTION OF PERFORMERS’ RIGHTS IN NIGERIA
Despite the legal provisions, the enforcement and protection of performers’ rights in Nigeria face multifaceted challenges:
A. Contractual Exploitation
Performers, particularly in the music industry, often enter into one-sided contracts that transfer significant proprietary rights to record labels and producers. This is exacerbated by insufficient legal regulation of contractual frameworks in the entertainment sector, thereby enabling exploitation.
B. Technological and Digital Threats
Rampant digital piracy and unauthorized streaming significantly impair the ability of performers to monetize their work.
Emerging technologies such as Artificial Intelligence (AI) and deepfakes pose serious risks to performers’ ability to control the use of their image, voice, and likeness.
RECOMMENDATIONS AND CONCLUSION
In view of the increasing economic importance of the entertainment industry and the vulnerability of performers to contractual and digital exploitation, urgent reforms are imperative.
There is a pressing need for the comprehensive reform of intellectual property legislation, particularly in areas relating to artist management contracts, performance agreements, and licensing frameworks. Such reforms should clearly delineate ownership structures, usage rights, and transferability conditions, thereby ensuring equitable benefit-sharing between performers and intermediaries.
Ultimately, safeguarding performance rights is essential not only for protecting the creative economy but also for reinforcing Nigeria’s global standing as a hub of artistic and cultural innovation.
Omaga Emmanuel is a Legal Practitioner, Head of Technology, Media and Telecommunications Department, and Associate Partner at
Law Corridor, Abuja. | Omaga@lawcorridor.com
Obi Ivon Chineze is a Legal Practitioner and Associate in the Technology, Media and Telecommunications Department of Law Corridor, Abuja.