High Court Judgment on Caller Ringback Tones, Definition of Public Performance and Regulation of Collecting Societies

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Previously we reported here that several members of Music Copyright Society of Kenya (MCSK) had filed a case in the Commercial Division of the High Court challenging a license pertaining to the caller ringback tones (CRBT) service known as “Skiza Tunes” owned by mobile network operator, Safaricom issued by the three music collective management organisations (CMOs) including MCSK.

While the outcome of this commercial suit is still pending, we have come across a recently delivered judgment in the case of Petition No. 350 of 2015 David Kasika & 4 Ors v. Music Copyright Society of Kenya in which several MCSK members alleged that the collection of royalties by MCSK under the CRBT license agreement in question violates their constitutional rights, that the making available of works for download on Safaricom’s CRBT service amounts to a private performance as such section 30A of the Copyright Act does not apply and thus the CMOs cannot collect royalties on behalf of its members as required under the section. Finally, the petition invited the court to weigh in on several damning allegations made regarding mismanagement by MCSK in its collection and distribution of members’ royalties.

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