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  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.
According to the South African Copyright Review Commission, Multichoice has no agreement with SAMRO based on the fact that it is not a broadcaster but provides a platform for broadcasters. The content service providers are responsible for obtaining broadcasting licences.
However what is unclear is whether in cases where the delivery of Multichoice’s services is made available outside country of uplink, the licence fees for the making available right are deemed to be paid for by Multichoice in the country of uplink (in this case – South Africa). In this regard, it appears that the CMOs in most African countries including MCSK have assumed that Multichoice services in their respective territories have been authorised by SAMRO.
Therefore, the long-standing copyright issue with regard to Multichoice has been the exact nature and scope of its broadcast and/or signal distribution operations especially with reference to the up-linking of content from South Africa for delivery in Kenya and other African countries and whether a license arrangement exists between SAMRO and Multichoice in this regard and use of copyrighted works by Multichoice’s subscriber base (in both Direct-to-Home and multi-unit dwellings) across the concerned African countries.
In this connection, the CEO of the Namibian Society of Composer and Authors of Music (NASCAM) reportedly stated as follows:
“We have Reciprocal Representation Agreements (RRA) with came about as a result of the Berne Convention. We need to have sister agreements to protect our artists work in other countries, which is what we have with SAMRO (…) In 2014 we visited SAMRO’s headquarters in South Africa to find out why they were withholding our artists’ royalties. We investigated the matter and realised that once you search for our artists on their system they are shown to be of unknown origin. This makes it hard for SAMRO to pay them because they are unknown on the system (…) There are other countries who have not received their royalties from SAMRO either because of the same issue.”
In Kenya, the right of making a work available is not provided for by the Act unless perhaps in the case of the rights of performers under section 30. The right of making available is an extension of the right of communication to public in the digital environment, which is provided for under the WIPO Copyright Treaty. This making available right grants the right holder greater control of the work when it is distributed over a digital network, which for our present purposes includes distribution of programme-carrying signals via satellite.