This blogger has recently come across a recent judgment of the High Court in the case of Maurice Owino Onyango v Music Copyright Society of Kenya [2015] eKLR. In this case, Music Copyright Society of Kenya (MCSK), the sole collecting society or collective management organisation (CMO) for authors, composers and publishers of musical works, was the respondent in an appeal in the High Court challenging the decision of the Magistrates’ Court in a case filed against MCSK for malicious prosecution. Majanja J sitting in the High Court found in favour of the CMO and upheld the judgment of the lower court.
A copy of the judgment is available here.
The thrust of the High Court’s judgment in this matter can be found at paragraphs 11 and 12 which read as follows:
“The appellant in his testimony in the criminal and civil case admitted that Ruma Lodge did not have a licence and that it was playing Lingala music in a public. Under the provisions of section 38(2) as read with section 35(1) of the Act, all public performances of music in which copyright subsists require permission from the copyright owner. The appellant contended that the respondent did not show that the musician more particularly Franco was its member. In my view this was not necessary. The offence for which the appellant was charged was causing a musical work in which copyright subsists to be played in public. The appellant did not contend that copyright did not subsist in the work by Franco or that it had been permitted to play the music by Franco in public. As the appellant did not have a licence, the provisions of the Act were breached and the respondent’s officer was entitled to lay a complaint to the police.
The appellant’s grounds of appeal I have set out above basically impugn the capacity of the respondent to enforce licensing provisions of the Copyright Act. The respondent is a body licenced to collect royalties under section 46 of the Act. The purpose of the respondent laying the complaint is to ensure that the appellant and other establishments respect copyright law generally. The charge laid against the appellant was not in regard to membership of the respondent but in respect of breach of copyright.”
This judgment confirms the earlier precedent set by the High Court in the case of Music Copyright Society Of Kenya v Tom Odhiambo Ogowl [2014] eKLR previously discussed here.
Editor’s Note: At the time of this publication, this blogger served as MCSK General Counsel. All views expressed herein are his own and not those of MCSK
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