Blind Opposition to Caller Ringtone Deal between Safaricom and Collecting Societies: High Court Case of Irene Mutisya & Anor v. MCSK & Anor

Robert Collymore CEO Safaricom

This blogger has recently come across Nairobi High Court Civil Case No. 262 of 2015 Irene Mutisya & Anor v. Music Copyright Society of Kenya & Anor. In this case Mutisya and another copyright owner Masivo have filed suit against Music Copyright Society of Kenya (MCSK) and mobile network operator Safaricom Limited for copyright infringement. The copyright owners filed an urgent application on 30th July 2015 for a temporary injunction to restrain Safaricom from remitting license fees to MCSK pursuant to a recently concluded license agreement for caller ring-back tones (CRBT) made available through Safaricom’s Skiza platform. The copyright owners also asked the court to restrain both Safaricom and MCSK from implementing the CRBT License Agreement pending the hearing of the application.

The crux of copyright owners’ application is that MCSK lacks the mandate to license, collect, license fees for CRBT from mobile network operators such as Safaricom. In this regard, the copyright owners rely on a letter sent by Safaricom to a premium rate services provider (PRSP), Cellulant. This Safaricom letter notifies the PRSP that the existing Content Provision Agreement between the latter and Safaricom has been varied by operation of the law, namely the introduction of the single equitable remuneration through a recent amendment to the Copyright Act. Therefore Safaricom states that following demands from the related rights collecting societies to collect license fees for equitable remuneration, Safaricom will pay all royalties directly to the collecting societies.

Curiously, learned High Court Justice Mabeya granted the orders sought by the copyright owners for a period of fourteen (14) days during which the matter will come up for inter partes hearing. A copy of the orders is available here.

Readers of this blog will no doubt draw heavy parallels between this suit and an earlier suit reported here as Nairobi High Court Petition No.317 of 2015 Xpedia Management Limited & 4 Ors v. Attorney General & 4 Ors.

This blogger opines that there is a clear attempt by some Content Service Providers (CSPs) and PRSPs to frustrate the smooth operation of the CRBT License Agreement between Safaricom and the collecting societies. Unfortunately, it appears that some copyright owners and related rights holders are being used by the CSPs and PRSPs in this blind opposition to an erstwhile lucrative deal for the music industry in Kenya.

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