Neighbouring Rights.
“Droits Wisins” in French used during the 1948 Brussels Diplomatic Conference, also known as Neighbouring Rights, other times “Related Rights” is a term that describe the rights of artistes in live performance and expression of folklore. It also extends to the rights of broadcasting organizations in their sound recordings, and producers of phonograms. These rights were first internationally protected by the Rome Convention when it was signed in 1961 for the purpose of protecting artistes, producers during live performances as well as broadcast organisations.
Within the European Union, the rights of film producers (as opposed to directors) and database creators are also protected by neighbouring rights, and the term is sometimes extended to include the sui generis rights in industrial design.
In Nigeria, artistes are not only restricted to the contract signed but these works of entertainment is regulated by Part 2 of the Copyright Act, independent of the general provisions bordering on copyright, and are beyond copyright because artistes cannot readily show their work in permanent form during live performances unless recorded, which makes Neighbouring Rights and Copyrights Rights exclusive of the other.
Generally, neighbouring rights are tied to the artiste individual performance even when it involves numerous others and such rights cannot be assigned to another (i.e an artiste cannot transfer his/her/their rights to another person for valuable consideration).
These performances are expressed as; dramatic performance (drama and mime), musical performance, spoken word performance, reading or recitation of literary acts or any similar presentation bordering on live performance given by one or more artistes, as well as the expression of folklore –traditional stories and stories of a country or community (as provided for in section 31 of the Copyright Act). It affords protection of folklore in terms of its reproduction, communication to the public by performance, broadcasting, distribution by cable or other means; adaptation, translations and other transformations.
Also worthy of note is that Neighbouring Rights are distinct from Performing Rights (which are the royalties due to the composer or producer of a piece of music under copyright in return for the licence (permission) to perform the piece in public). The rights of an artiste (provided for in section 26 of the Copyright Act) in relation to his/her/their performance including performing, recording, broadcasting live, reproducing in any material form and adaptation performances are different from performing rights.
Neighbouring rights subsist for a period of fifty years, starting from the year the rights enure till the term of fifty years expires.
The protection of such a performance is subject to the additional criteria pertaining to the country where the performance took place and the artiste’s relationship with the place (also extends to an entire cast) i.e whether they are citizens or residents of the place where the performance took place or any other designated country to which the Copyright Act is extended to for that purpose. Consideration should also be given to the fact that the Act did not state the position of the legal status of performances by foreigners in Nigeria in terms of determining ownership of performances.
It should also be noted that some of these performances are cultural in nature and are made by or under the control of a government especially as Part 1 of the Act does not apply to Part 2. Furthermore, the Copyright Act did not provide for moral rights of artistes and producers in live performances as contained under section 12 regarding copyright works, the criteria of eligibility for such live performance (see section 1 (1), 5 and 41 of the Copyright Act for copyright works) and exceptions in respect of the artistes rights (as the Act provides for protection on copyright works in the Second Schedule of the Act).
It is therefore important for solicitors drafting these contracts to preempt these issues and make provisions for them. This will play a complementary role in making provisions for the chasms caused by statutory enactment and as a matter of legal necessity so as to protect the interests of artistes in Nigeria and foreigners coming to perform within our shores should issues of law arise in the determination of moral rights, eligibility, exceptions in respect of artistes rights and other issues which could be raised.
Legislators should therefore consider reviewing the Copyright Act in order to provide clear cut terms on these highlights.