CMOs Behaving Badly: Kenya Featured Alongside EU and US Copyright Collecting Societies

The raison d’etre of  the collective administration or collective management system in copyright law is to bridge the gap between rights holders and users of copyright works. So, what happens when collecting societies, or as they are commonly called collective management organisations (CMOs), fail to carry out this core function and instead become poster children for corruption, mismanagement, lack of transparency, and abuse of power?

Back in 2013, Jonathan Band and Brandon Butler published an insightful article titled ‘Some Cautionary Tales About Collective Licensing’ which exposed the dark side of CMOs around the world. This blogger was pleased that some of our work in the context of CMOs in Kenya was featured in the article, specifically the on-going wrangles between Music Copyright Society of Kenya (MCSK) and literally everyone else including the copyright regulator, copyright owners, copyright users and even other Kenyan CMOs in the music industry.

High Court Declares Section 30A of the Copyright Act Unconstitutional and CMO License Agreement Unlawful

This blogger has come across a recent judgment in the case of Mercy Munee Kingoo & Anor v. Safaricom Limited & Anor [unreported] Malindi High Court Constitutional Petition No. 5 of 2016 delivered by Mr. Justice S.J Chitembwe on 3rd November 2016. At the heart of this Petition was the claim that section 30A of the Copyright Act is unconstitutional. This Petition raised two important issues for determination: firstly, whether the petition is ‘res judicata’ in light of two earlier decided High Court Petitions (discussed previously here and here) in which section 30A was not found to be unconstitutional and secondly, whether the amendment of the Copyright Act and introduction of section 30A is unconstitutional for failure to observe the principles of public participation.

High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

 

Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).

Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.

No Making Available Right, No Royalties from Multichoice Signal Distribution

This blogpost has been prompted by two recent developments in Kenya and Namibia. In Kenya, the High Court recently delivered a ruling in the case of Music Copyright Society of Kenya Limited & another v Multichoice (K) Limited & another [2016] eKLR in which the court dismissed the copyright infringement suit filed by the collective management organisation MCSK against Multichoice. Meanwhile in Namibia, a recent report here reveals one of the reasons why Southern African Music Rights Organisation (SAMRO) which receives royalties from Multichoice has failed to distribute them to other concerned African copyright societies.

Devil in the Details of Joint Collection of License Fees for Musical Works and Sound Recordings

Last week, the ever-busy Kenya Copyright Board (KECOBO) published a public notice stating that it had approved the renewals of registration as collecting societies for Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK) for the period January 1st to December 31st 2016. According to KECOBO, the collection by the three collecting societies in the area of music will be “jointly undertaken as per the work plan agreed by the three societies in the interest of cutting costs and reducing business disruption.” 

Further, KECOBO explains that: “Each [collecting] society shall be required to undertake certain reforms in the course of the first half of the year with a review scheduled for July 2016. KECOBO shall issue an advertisement in July [2016] inviting companies established for the purpose to express interest and bid to collect in 2017 to facilitate transitions if a new establishment is granted a license.” 

For KECOBO and the collecting societies this is no mean feat given the long journey thus far towards a single license regime for users of musical works and sound recordings in Kenya. However, KECOBO’s notice leaves out some crucial details which will ultimately determine whether this latest attempt at joint collection will succeed or fail.

Kenyans Pay Three Times More Than South Africans to Use Sound Recordings: Lessons from Appeal Court Judgment in SAMPRA v. Foschini Retail Group & 9 Ors

Recently, Kenya Copyright Board (KECOBO) published on its website here the proposed 2016 collecting society joint tariffs for musical works, sound recordings and audio-visual works. A copy of these joint tariffs is available here. In order to ensure public participation before the approval of these tariffs, KECOBO will convene an open half-day public forum to be held next week on February 10th 2016 at the Auditorium of NHIF Building starting at 8:30am.

This blogpost will focus on the tariffs for sound recordings since they have recently been the subject of thorough debate and analysis in South Africa’s Supreme Court of Appeal. It is hoped that the South African experience will be useful to Kenyan users in their negotiations with collecting societies on reasonable tariffs to pay for use of copyright works.

Jurisdiction is Everything: Time to Merge Tribunals for Copyright, Industrial Property, Seed and Plant Varieties

As readers may know, a government taskforce had earlier recommended the merger of the three intellectual property (IP) offices dealing with copyright, industrial property and anti-counterfeit matters. The implementation of these recommendations appears to have stalled with no progress made to-date. In addition to the IP offices, there is also the matter of the various IP dispute resolution bodies created under the various IP laws: the Industrial  Property  Act establishes the Industrial  Property  Tribunal, the Copyright Act establishes the Competent Authority (akin to a Copyright Tribunal), the Anti-Counterfeit Act  establishes the Anti-Counterfeit Agency and the Seeds and Plant Varieties Act establishes the Seeds and Plant Tribunal.

Recently, the Judiciary Working Committee on Transition and Restructuring of Tribunals developed a Draft Tribunal Bill 2015 to help domicile all tribunals under the Judiciary. This is an important step that could benefit IP owners and users in the quick and expert settlement of various IP-related disputes.

Copyright Regulations Amended and Collecting Societies’ Tariffs Gazetted

Most IP observers will concur that in the recent past the related rights collecting societies namely Kenya Association of Music Producers (KAMP) and Performers’ Rights Society of Kenya (PRiSK) have done exceedingly well for themselves in the area of legislative and policy reforms by leveraging on the goodwill from Kenya Copyright Board (KECOBO). As a result, KAMP and PRiSK have been the major beneficiaries of consecutive amendments to the Copyright Act and Copyright Regulations in 2012, 2014 and now 2015.

Recently, the Attorney General made Copyright Amendment Regulations which expressly deal with the private copying levy or blank tape levy payable to KAMP and PRiSK under sections 28 and 30 respectively of the Copyright Act. In addition, the Attorney General has also recently approved and gazetted the tariffs to be used by KAMP and PRiSK to collect royalties from various categories of users including broadcasters, telecommunications companies, service providers, business premises and vehicles both public as well as corporate.

Proposed 2015 Intellectual Property Law Amendments: Kenya Copyright Act

Recently, the Statute Law (Miscellaneous Amendments) (No. 2) Bill, 2015 was published in Kenya Gazette Supplement No. 165 (Bills No. 58). The Bill seeks to one section of the Copyright Act, namely section 30(8). A copy of this Bill is available here (See pages 3229-3230). This proposed amendment inserts the following words at the end of the section: “and the compensation shall be collected by the Board and distributed to the respective copyright collecting society registered under section 46.”
According to the Memorandum of Objects and Reasons in the Bill, the proposed amendment to section 30(8) is intended to provide for structured compensation of performers and producers of sound recordings for private copying of works in line with international norms and practices.

Legality of Equitable Remuneration Challenged: High Court Petition of Xpedia & 4 Ors v. Attorney General & 4 Ors

Editor’s Note: On 31st July 2015, the urgent application in this Petition No.317 of 2015 dated 29th July 2015 was heard and certain interim orders were granted. A copy of the orders is available here.

This blogger has confirmed a recent media report that two content service providers and three copyright owners have jointly filed a petition challenging the constitutionality of the right to equitable remuneration under the now infamous section 30A of the Copyright Act. The Petition was filed against the Attorney General, Kenya Copyright Board (KECOBO), Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK).

As stated above, the crux of the Petition filed by Xpedia Management Limited, Liberty Afrika Technologies Limited, Elijah Mira, Francis Jumba and Carolyne Ndiba is that KAMP, PRiSK and MCSK should be stopped by the court from receiving or collecting royalties under section 30A of the Copyright Act in respect of works owned or claimed by the Petitioners.