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JUDGMENT
TWUMASI, JA.:
This is an appeal
lodged by the Copyright Society of Ghana (COSGA)
(hereinafter called the appellant) against the ruling of
the High Court, Kumasi delivered on October 3 1997 by
which the court made an emphatic pronouncement that the
appellant had no legal right whatsoever to enforce any
payment of royalties or copyright fees against members
of the National Drinking Bar Operators Association of
Ghana in respect of their public use of any musical work
in their drinking bars. The legal proceedings which
culminated in the ruling being assailed were instituted
by one Kwame Afreh who styled himself as the Chairman of
the Drinking Bar Operators Association of Ghana.
Through the process of
an originating summons issued out of the registry of the
High Court, Kumasi on the 21 August 1996 the
plaintiff/respondent (hereinafter called “the
respondent”) formulated for the determination of the
court the following questions:—
(1) Whether the playing
of a recorded musical work obtained by purchase of a
Bandrole Cassette under the “Bandrole System” at a Beer
Bar amount to “Performance” of work of an author for
gain under section 36 of PNDC 110 of 1985 and the
Legislative Instrument LI 1527 of 1992 having regard to
the fact that retail price of beer is fixed.
(2) If the playing of a
recorded music at a Beer Bar amount to performance for
gain whether the defendant Copyright Society of Ghana
(COSGA) can arbitrarily levy a Beer Bar Keeper without
first establishing in details the number of times a
particular musical work of a particular author had been
played over a fixed period”.
The facts of this case
show that there is a recognised body known as National
Drinking Bar Operators Association of Ghana with the
respondent as its national chairman, resident in Kumasi.
It is a registered but non-statutory body and caters for
the interests of its members. From the tenor of the
summons, the respondent concedes that members of his
association play musical records in their business of
selling to the public drinkable of all kinds,
particularly beer.
In the affidavit in
support of the summons, however, the respondent averred
that his Association was not liable under the Copyright
Law 1985 (PNDCL 1107) and the Copyright Society of Ghana
Regulations 1992 to pay any royalties to COSGA, the
appellant in respect of any musical work purchased on
the Bandrole Cassette System. The respondent based his
contention on the following grounds:—
(a) that beer bar
operators pay purchase tax on each musical work
purchased on the bandrole cassette system.
(b) that his fellow
members also pay income tax and local administration
fee.
(c) that they do not
stage concerts at beer bars;
and for those reasons
it would amount to double taxation for them to pay
royalties in respect of the music they play at drinking
bars in the normal course of selling drinkables.
The appellant took a
contrary position on the issue. A deponent of an
affidavit sworn to on its behalf and filed on October
24, 1996 stated as follows:—
(11) That for the
moment I wish to state that COSGA has the right to
demand copyright royalty or fee payment from Drinking
Bar Operators in this country by virtue of copyright
legislations of this country as is also applicable in
all international norms and practices of collective
administration of copyright.
(15) (a) That COSGA is
only seeking for the payment of copyright fees from
Drinking Bar Operators who publicly perform music in
their drinking bars………….
(b) That a musical work
which is bought and used in a domestic manner does not
attract payment of copyright royalties, however a
musical work purchased (with or without a bandrole) and
used whether by way of broadcast, or any other
mechanical contrivance in a commercial establishment is
under section 36 of the PNDCL 110 and LI 1527 obliged to
pay royalties therein for the use of the music.
(18) That some of the
Drinking Bar Operators have paid their copyright fees
but the plaintiff internationally wants innocent members
to violate the law.
The learned trial judge
appeared to have been unduly puzzled by the provisions
of the Copyright Law, 1985 (PNDCL 110) and the Copyright
Society of Ghana Regulations 1992 (LI 1527) for, after
what appeared to me to be a random excursus on some of
the provisions including sections 6(1), 36 and 53 of the
PNDCL 110 and sections 1 (1), 10 (1), 22 of the LI 1527,
she confessed her inability to find any answer to the
issue. Instead of an answer, she advocated copyright law
reform for this country because in her view the current
law did not contain any clear-cut provision on the
question of law before her – namely whether drinking bar
operators in this country were liable to pay any
royalties for playing musical work on radio cassettes
under the law. The learned judge stated at the
penultimate part of her ruling:
“The law as it is now
needs to be looked at and amended if bar keepers and
hoteliers are expected to pay for playing music at their
workplace.”
The decision of the
trial judge from which this appeal emanates was
unequivocal ‘No’ to the question posed for answers in
the summons, that is to say, that under the present law
of this country no author of a musical work or by
necessary implication COSGA has any right to claim
royalties for any musical work from any member of the
Drinking Bar Operators Association of Ghana. The main
ground of appeal was stated as follows:—
“The learned High Court
Judge erred in law in considering that the playing of
music through a radio cassette player at a beer bar did
not amount to a public performance thereof such as to
attract liability for copyright infringement when
unauthorised, or to require licencing.”
It seems to me that the
best approach to the determination of the question of
law posed by this appeal calls for a holistic
interpretation of the PNDCL 110 and LI 1527 rather than
the construction of section 36 of the PNDCL 110. This is
in conformity with the line of construction of statute
adopted by the Supreme Court in the recent case of
Boyefio vrs. NTHC Properties Limited (1966-67) SCGLR.
531 with special reference to the opinion of Acquah,
J.S.C.
I shall not therefore
allow myself to be bogged down by section 36 alone which
the respondent put forward as the epicentre of his case.
I would start with section 1 of the Copyright Law, 1985,
which provides that:—
(1) The author of any
work specified in section 2 of this Law shall be
entitled to copyright and such protection as are
provided in relation to such work under this Law.”
Among the works
specified in section 2 of the Law is musical work.
Section 6(1) of the Law confers upon all authors of
musical work the exclusive right to authorise the
communication of their musical works to the public by
performance, broadcasting or any other means. For the
avoidance of doubt I wish to reproduce the provisions of
section 6(1) hereunder:
(6) The author of any
work which is protected by copyright shall have the
exclusive right in respect of such work to do or
authorise the doing of any of the following acts:
(a) the reproduction of
the work
(b) the translation,
adaptation, arrangement or any other transformation of
the work: or
(c) the communication
of the work to the public by performance, broadcasting
or any other means.”
The Law also recognises
the fact that any person who creates a work such as
musical work is entitled to remuneration by way of
royalties. Section 42 of the Law therefore establishes a
body corporate charged with the responsibility for the:
“promotion and
protection of the interest of authors and in particular
the collection and distribution of any royalties and
other remuneration accruing to them in respect of their
rights under section 6(1) of the Law.”
In order to reinforce
and give effect to the provisions of section 42 of the
PNDCL 110 the Copyright Society of Ghana Regulations,
1992 LI 1527 was made and section (1) thereof provides:
1 (1) There is
established a society of authors which shall be a body
corporate, to be known as the Copyright Society of
Ghana.
Among its objects as
spelt out in section 2 of the LI 1527 is to serve as a
collecting society for the collective administration of
copyright of the members of the society. And section
4(1) (d) of the LI 1527 enjoins the society “to charge
and collect royalties from the users of authors’ works
and pay such royalties to the appropriate authors.”
In explaining the
provisions of section 6(1) of the Copyright Law, 1985
(PNDCL 110) under the heading “Economic Rights” in his
small but invaluable book “Ghanaian Law of Copyright”
1993 Edition p. 26 the Learned author Mr. Andrew
Amegatcher states as follows: —
“Economic rights are
the rights of exploitation of the work and the resulting
right of receiving remuneration therefrom. The creation
of a work will not itself generate income for the
author. It is the exclusive right gives to the author to
exploit his work………… and to receive appropriate
remuneration which makes copyright a commodity which can
be bought, sold or transmitted to others by will. The
economic exploitation of one’s work involves the author
in many forms of licencing agreements………..”
In my endeavour to
uncover the true intention of the legislature in
enacting section 6(1) (c) of the Copyright Law 1985 and
the real meaning thereof I must confess that I have
found the above-quoted passage very illuminating and
useful and I fully endorse it as my own for the simple
reason that the views of the learned author overlap with
mine on the point.
Under section 6(1) the
author of a musical work is armed with the power to stop
at will any person including members of the Drinking Bar
Operators Association of Ghana from playing a musical
work at their work places namely drinking bars,
restaurants and hotels.
In the same vein, the
author can permit the use of the musical work with or
without conditions. But since music nowadays has become
a marketable asset, its authors stand to gain by the
public use of the work but they have become more
aggressive than ever before in protecting its unbridled
use by others. Admittedly public patronage of musical
work augers well for the national economy and it is
imperative that every effort be made to let this
phenomenon serve as an incentive to authors of music. We
must recognise that wherever there is adequate incentive
there flourishes a healthy competition as a catalyst for
economic growth of any country. Little wonder that this
right of authors has received international treaty
status under article 15 of the World Intellectual
Property Organization (WIPO) Performances And Phonograms
Treaty (WPPT) Geneva, 1996. This article goes under the
banner headline “Right To Remuneration for Broadcasting
and Communication to the Public.” Ghana has adopted this
provision in our law on copyright. On a proper
construction of the provisions of section 6(1) (c) of
the Copyright Law 1985 (PNDCL 110) I am clearly of the
view that COSGA has every right to surcharge any
drinking bar operation or hotelier or restaurant
proprietor or others in this class of business,
remuneration or royalties for playing musical work on a
radio cassette or any other means at the said bars,
hotels and restaurants etc, because the playing of the
music to the hearing of members of the public buying and
drinking at the said places constitutes communication of
musical work to the public within the ambit of section
6(1) (c). In this regard, I find myself in complete
agreement with the submission of learned Counsel for the
appellants on section 6(1) (c) of the PNDCL 110 but
could not share similar sentiments with the learned
trial judge who held a contrary view that the current
legislation in this country needed to be looked at for
amendment that would deal with the issue in this case
regarding the right of musical work authors to enforce
copyright claims against drinking bar operators. It
follows in my view that section 6(1) (c) of PNDCL 110
rather than section 36 thereof was more apposite to the
question posed by the respondent for the determination
by the court. Under section 53 of the PNDCL 110 which is
the interpretation section the word “Phonogram” is the
subject matter of section 36: It reads as follows:—
“36: Where in any
public place by means of broadcasting, cinematography,
jukeboxes or other apparatus, photographic discs or
other devices are used in a public performance the
authors performers and the producers of the phonogram
shall be entitled to royalties in accordance with the
provisions of the law.”
Under section 53 a
“phonogram” means any exclusively aural fixation of
sounds of a performance or of other sounds”. The same
section defines “musical work” as referred to in section
2 of the PNDCL 110 as follows:
“musical work includes
any musical works irrespective of its musical quality
and words composed for musical accompaniment.”
Arguably if the two
terms meant the same thing the legislature would not
have defined them separately within the same
interpretation section. It seems to me clear without any
qualms that the respondent’s Counsel misled the trial
judge by using section 36 as the spotlight for the
formulation of the question for interpretation. The
proper section should have been section 6 of the PNDCL
110. But there was no substantial miscarriage of justice
thereby occasioned because “phonogram” encompasses
“musical work” but section 36 deals with an entirely
different segment of copyright which involves the
author, performer and producer in the mechanical scheme
envisaged under the section. The provisions of section
6(1) incorporate the essential requirement of
performance in public. And public performance is defined
under section 53 as follows:—
“Public performance
means the performance of a work which is presented to
listeners or spectators not restricted to specific
persons belonging to a private group and which exceeds
the limits of usual domestic representations.”
The distinction drawn
between public use or performance of musical work and
domestic or private use is clearly stated in the English
case of Performing Right Society Limited vrs. Hammonds
Bradford Brewery Co. Limited 1935 All ER 270 cited by
the appellant’s Counsel. Also relevant is the case of
Performing Right vrs. Harlequin Record Shops Limited
(1979) 2 All ER. 828; Jennings vrs: Stephens (1936) 1
All ER. 409 All sited by Counsel for appellant. I found
these cases very apposite and that saved me the trouble
of further research on the point. My understanding of
this definition is that the use of a musical work,
however acquired, whether under the bandrole system or
otherwise attracts liability for payment of royalties or
remuneration to the author if the use thereof does not
take place in the serenity of the room or house or at
the domestic hearth of the drinking bar operator but
rather at the latter’s business place where he plays it
to the amusement and joy of his customers or other
listeners present and buying drinks or otherwise
entertaining themselves at the workplace. The single
question which the drinking bar operator must answer is
why does he carry the musical piece to his drinking bar
or hotel? He is deemed to know that the law gives to the
author of the musical work the exclusive right to
communicate the work to the public by playing it in the
public to listeners. The drinking bar operator cannot
usurp a legal right which belongs to the author of a
musical work and at the same time dismiss the claim of
the author for remuneration in the form of payment of
royalty by taking refuge under a so-called bandrole
system.
I gather from the facts
of this case that a system in operation called the
“Bandrole system” requires every reproducer of a musical
cassette to fix to each musical radio cassette an
adhesive tag or label. The label does no more than serve
as evidence that the requisite royalty for reproduction
of the music work by the manufacturer has been paid to
the author and that it is genuine. To be specific
section 27(4) of the PNDCL 110 provides that:—
27(4) The royalty
payable by the manufacturer…shall be an amount not less
than seven per centrum of the ordinary retail-selling
price of each copy of the phonogram made under this
section. I also gather from the submission of Counsel on
both sides that a musical work falls under the
definition of a phonogram, but from whatever angle one
looks of the provision the claim by the respondents that
they pay tax through purchase of musical work under the
bandrole system and therefore they could not be required
to pay royalty to COSGA is totally untenable because the
author’s right under section 6(1) of the PNDCL 110 is
entirely independent of the bandrole system, although he
is also entitled to royalties by virtue of the
provisions of section 36 of PNDCL 110 jointly with
producers and performers referred to in that section of
the law.
The contention that to
pay royalty to an author of musical work would amount to
payment of double taxation also fails to take cognizance
of the difference between tax law and copyright law.
The author of a musical
work has several rights under the PNDCL 110 e.g. rights
over reproduction, distribution, transfer and sale, to
mention a few. Another issue flared up in this appeal.
It was an argument proffered by Counsel for the
respondent, which could not be dismissed without
considering it. It related to the element of “gain”. Was
evidence that the drinking bar operator had derived gain
from the public use of a musical work an essential
factor or condition for determining liability to pay
remuneration by way of royalty to the author? Counsel
placed reliance on regulations 19 and 20 of LI 1527,
which reads as follows:—
19(1) Subject to
regulation 20 of these Regulations any person who wishes
to use or perform the works of any author or cause such
works to be performed in public for gain shall apply to
the Board for a licence to do so.
(2) The application
shall be as set out in Form B in the schedule to these
Regulations.
20. The Board shall
charge such royalties in respect of the granting of a
licence as it may from time to time determine.”
In dealing with this
regulation it is necessary to direct focus on an
important canon of construction of statutes. It is that
a subsidiary legislation such as the LI 1527 is likened
to a branch of a tree while the principal statute from
which it draws its legitimacy it likened to the trunk of
the tree, the former cannot be stronger than the latter
in the sense that it can nurture attributes which do not
find sustenance from the trunk.
Framed in another legal
parlance, any provision in a subsidiary legislation
which is inconsistent with the provision of the enabling
enactment is null and void to the extent of its
inconsistency. In this regard it is worthy of notice
that nowhere in the Copyright Law 1985 PNDCL 110 has the
legislature stated that royalties for any work including
musical work are eligible only where there is proof that
the said work was played in a public place for gain.
It may be assumed, not
unjustifiably, that the legislature opined that to a
user or listener of music alike gain or some profit
albeit intangible is implied in the playing thereof;
that music is pleasurable to all and that its intrinsic
value which can be construed as gain or profit makes it
superfluous to mention it in a statute.
I suppose that it was
in the light of this fact that counsel for the appellant
relied on a dictum of Justice Oliver Wendel Holmes in
the United States case of Victor Herbert vs. Shanley’s
Restaurant and Philip Sonsa vs. Vandorbilt Hotel where
he said:—
“if music did not pay
it would be given up………………… Whether it pays or not the
purpose of employing it is profit and that is enough.”
In his statement of
case the counsel for the respondent quizzed:
“The issue is “whether
the mere playing of a cassette recorder embodying music
at a beer bar constitutes performance for gain.”
His argument
intensified at the penultimate part of his statement by
way of elaboration in the following emphatic and
authoritative statement:
“It is clear that only
quantifiable gains are contemplate by the said
regulation”.
I do not think that the
legislature intended that there should always be a daily
mathematical calculation of the number of tracks a
particular drinking bar plays a musical piece. For
example all TV owners pay ¢3,000 licence for the year
but while some people view it 24 hrs others do so less
often.
Collection of royalties
is a matter of amicable negotiation between the
copyright owner and the consumer of the commodity. Out
of negotiation a workable compromise deal could emerge.
It is business. If a commodity is not used loses its
economies value. This underlies the establishment by
statute of the copyright society of Ghana.
Fortunately for the
parties in this case the legislature in its wisdom has
made provision for arbitral proceedings in the Copyright
Law 1985. Section 49 of the Law empowers parties to any
dispute under the copyright law to apply to the Minister
responsible to appoint arbitrators to settle any dispute
amicably. Now that this court has decided that drinking
bar operators etc are liable to pay loyalties for music
played by them, they can settle the modalities through
negotiation or the arbitral process. The courts are also
open and COSGA has an unimpeded access to them for the
enforcement of the rights of all authors.
From the analysis made
so far in this judgment it seems to me that counsel for
the respondent unwittingly concedes the case of the
appellant because he impliedly suggested that royalties
could be paid provided they could be quantified by
ascertaining the number of times a particular musical
work has been played over a fixed period. He diverges
from the appellant’s claim only in respect of the
modality for the assessment of royalties. The decision
which I have arrived at on the question before this
court in this appeal is that the continued use of music
in the premises of any drinking bar or hotel or
restaurant in the country without the consent or
authority of the Copyright Society of Ghana (COSGA)
amounts to infringement of copyright under the Copyright
Law 1985 Section 6(1) thereof because the law gives the
author of any musical work exclusive right to
communicate the music to the public. The COSGA has the
right to decide the form which the grant of its consent
or authority should be whether it takes the form of a
grant of a licence or otherwise and they are entitled to
determine the duration of the user. I learn from the
affidavit in opposition filed by COSGA that some
drinking bar operators have seen reason to co-operate
and are paying and those challenging COSGA’s claim have
been taken to court.
In fact the action
which culminated in this appeal was triggered off by the
writ of summons issued against a drinking bar operator
by COSGA to enforce payment of copyright fee. In the
final analysis I hold that the respondent’s action was
misconceived and the learned trial judge also erred in
law in giving a ruling in his favour. I must here state
that the learned trial judge came to a wrong conclusion
largely because of the manner in which the question for
determination was formulated. In my view the best
approach to the process of origination summons in cases
involving the construction of statutes is for counsel to
avoid restricting the court to specific provisions of a
statute. This method gives the court free hand to study
the whole statute with a view to using the relevant
provision to solve the question raised in the
originating summons. In this case it was wrong for
counsel to have restricted the judge to section 36 of
the PNDCL 110. It was also wrong in procedure for the
respondent to have introduced irrelevant matters such as
the price of beer having been fixed.
In the result the
appeal succeeds. The ruling of the court below is set
aside. There will be ¢2M costs for the appellants.
P.K. TWUMASI
JUSTICE OF APPEAL
ESSILFIE-BONDZIE,
JA.:
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
ARYEETEY, JA.:
I also agree.
B. T. ARYEETEY
JUSTICE OF APPEAL.
COUNSEL
Mr. Heward-Mills (with
him Mr. Andrews Tetteh for Defendant/Appellant.
Mr. Ativoe Kludze for
Kunyehia for Plaintiff/Respondent. |
