OPANIN KWAME AFREH vs. COPYRIGHT SOCIETY OF GHANA [1999]DLCA6554

Date	1999-12-23
Suit No.	CIVIL APPEAL NO.: 24/99.
Citation No.	[1999]DLCA6554

ESSILFIE-BONDZIE JA. (PRESIDING)

TWUMASI JA.

ARYEETEY JA.

MR. HEWARD-MILLS (WITH HIM MR. ANDREWS TETTEH FOR DEFENDANT/APPELLANT

MR. ATIVOE KLUDZE FOR KUNYEHIA FOR PLAINTIFF/RESPONDENT

[1999]DLCA6554
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWAME AFREH<o:p></o:p>vs.<o:p></o:p>COPYRIGHT SOCIETY OF GHANA<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: 24/99.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 23RD
DECEMBER, 1999<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
HEWARD-MILLS (WITH HIM MR. ANDREWS TETTEH FOR DEFENDANT/APPELLANT.<o:p></o:p>

MR.
ATIVOE KLUDZE FOR KUNYEHIA FOR PLAINTIFF/RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>ESSILFIE-BONDZIE JA. (PRESIDING), TWUMASI JA., ARYEETEY
JA.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>TWUMASI,
JA.:<o:p></o:p>&nbsp;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.<o:p></o:p>&nbsp;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:—<o:p></o:p>&nbsp;(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. <o:p></o:p>(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”.<o:p></o:p>&nbsp;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.<o:p></o:p>&nbsp;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:—<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that
beer bar operators pay purchase tax on each musical work purchased on the
bandrole cassette system.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp; that
his fellow members also pay income tax and local administration fee.<o:p></o:p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; that
they do not stage concerts at beer bars;<o:p></o:p>&nbsp;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. <o:p></o:p>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:— <o:p></o:p>(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.<o:p></o:p>&nbsp;(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………….<o:p></o:p>&nbsp;(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 </main>