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.
Xpedia and Liberty (the CSPs) claim to have Agreements for the Provision of Content Service Provider Services to Safaricom Limited, a leading mobile network operator in Kenya. The CSPs claim that as a result of illegal demands made on Safaricom by KAMP, PRiSK and MCSK (the CMOs), Safaricom wrote to the CSPs informing the latter that Safaricom would be making all royalty payments directly to CMOs. The Petitioners contend that as a result of this variation of their Agreements with Safaricom, the CSPs will no longer be able to honour their contractual obligations to its licensors including Elijah Mira, Francis Jumba and Carolyne Ndiba (the Copyright owners). These Copyright owners joined the Petition because Safaricom’s variation of it’s agreements with the CSPs affects the royalties due to the owners under license agreements signed with the CSPs.
The Petitioners claim that three constitutional rights have been infringed as a result of the enactment of section 30A of the Copyright Act namely, Article 36 on Freedom of Association, Article 40 on Right to the Property and Article 47 on the Right to Administrative Action.
Primarily, the Petitioners claim that section 30A takes away rights of copyright holders to collect payments from users of their works. Furthermore, the Petitioners claim that the effect of section 30A is that CMOs can collect license fees for single equitable remuneration but not to remit royalties to copyright owners who are not members of the CMOs. Therefore the Petitioners contend that section 30A compels copyright owners to become members of CMOs when they would rather not contrary to Article 36 of the Constitution.
Additionally, the Petitioners claim that KECOBO has failed in its statutory mandate to give directions with regard to the administration of equitable remuneration. As a result of this failure on the part of KECOBO, the Petitioners claim that there is confusion among users and owners alike, cases of overpayments by users and a lack of clear mode of sharing and distribution of royalties. The Petitioners further aver that KECOBO erred in registering several CMOs with overlapping mandates resulting in multiple payments, overcharging, duplication and confusion. Finally KECOBO is accused of failing to effectively regulate the CMOs in accordance with the Act resulting in the misinterpretation and maladministration of s30A by the CMOs.
In light of the above, the Petitioners have asked the court to interpret s30A, the roles of KECOBO in so far as licensing of CMOs is concerned and the roles of the CMOs vis a vis rights of the copyright owners. In this connection, the Petitoners have asked the court to declare s30A as unconstitutional and have sought injunctive and declaratory orders against the CMOs and KECOBO.
This blogger will be closely following the developments in this matter.