This blogger has come across a recent judgment in the case of Mercy Munee Kingoo & Anor v. Safaricom Limited & Anor [unreported] Malindi High Court Constitutional Petition No. 5 of 2016 delivered by Mr. Justice S.J Chitembwe on 3rd November 2016. At the heart of this Petition was the claim that section 30A of the Copyright Act is unconstitutional. This Petition raised two important issues for determination: firstly, whether the petition is ‘res judicata’ in light of two earlier decided High Court Petitions (discussed previously here and here) in which section 30A was not found to be unconstitutional and secondly, whether the amendment of the Copyright Act and introduction of section 30A is unconstitutional for failure to observe the principles of public participation.
In distinguishing the earlier Petition No. 317 of 2015 from the present Petition, the court stated that in the earlier Petitions it was determined that section 30A is not unconstitutional. However, that determination is in relation to the parties to that petition as well as the core issue as to whether the section violates Freedom of Association under Article 36 of the Constitution. The court noted that petitioners in the present Petition were not parties to the earlier Petition and rejected the contention that these earlier Petitioners were represented by their Premium Rate Service Provider (PRSP) – Liberty Africa Technologies. According to the court, the freedom of association of the PRSPs was different from that of the artists who were the petitioners in the present Petition. In this regard, the court stated as follows:
“A petitioner can say that a certain provision of a statute is unconstitutional as it violates a certain Article of the Constitution. That dispute can be determined but another party is not barred from asking the same court to declare the same statutory provisions as unconstitutional as it was passed without public participation or that it violates another Article of the Constitution. In other words, res judicata cannot be applied generally in relation to interpretation of the Constitution or a statute. There is also the simple fact that one judge can declare a certain statutory provision as unconstitutional while another judge declares the same provision as constitutional. In such a case, res judicata cannot apply.”
Therefore the court held that the present Petition is not res judicata. As such the petitioners can challenge the provisions of Section 30A on the grounds that it was passed without public participation or that it violates their constitutional rights. In addition, the court stated that the petitioners can also challenge the section on the ground that its implementation is leading to infringement of their constitutional rights.
Finally, the court moved to consider the central issue in the Petition namely, whether there was public participation in enacting section 30A of the Copyright Act. It was submitted that Section 30A was brought in through the Statute Law (Miscellaneous Amendments) Act, 2012 (SLMA Act) which was introduced in Parliament on 19.12.2012 for the first reading and went through the second reading on the same date then went to the committee stage and then back to Parliament on 21.12.2012 for 3rd reading and was passed by Parliament. It was assented to by the President on 31.12.2012.
The Petitioners contended that although the SLMA Acts ordinarily deal with minor amendments to several statutes at one-go, the SLMA Act of 2012 made “new introductions” that altered the Copyright Act to a “great extent” through “new substantive provisions that were not in place before”. Therefore, the petitioners claimed that there was need for such amendments to be subjected to public participation. In this regard, the court made the following observations with regard to the SLMA Act 2012:
“The stakeholders affected by the Copyright Act includes all Kenyans generally and in particular the producers, performers, artists, mobile phone operators, broadcasting corporations among others. There is no evidence that the stakeholders were engaged before the introduction of section 30A of the Copyright Act. The section is not a minor Amendment. Indeed, if the contentions of the 1st and 2nd interested parties on the timelines taken to pass the bill it will be noted that there was no time for public participation. The committee only had three days from 19.12.2012 to 21.12.2012 to present the bill back to parliament. That period was not sufficient to engage the stakeholders.”
Therefore, on the issue of public participation before the introduction of section 30A, the court found that there was no public participation. According to the court, the stakeholders were not engaged despite the fact that the section does not introduce minor amendments instead it makes “drastic changes” to the Copyright Act which ought to have been subjected to public participation.
In the course of the judgment, the court attempts to distinguish royalties due under section 30A from royalties due from exclusive rights licensed under section 30. However the court fails to distinguish between the rights under copyright in the musical work (administered by MCSK) and the neighbouring rights related to sound recordings (administered by KAMP and PRiSK), the latter category of rights holders being the subject of Section 30A.
In the court’s opinion, the implementation of section 30A in such a manner that all royalties due to rights holders can only be paid through collective management organisations (CMOs) is unconstitutional. In this regard, the court states as follows:
“Section 30A of the Copyright Act does not illegalize payment of royalties to any person other than CMOs. If that is the case, then the section would be violating the petitioners’ right of freedom of association as well as freedom not to be compelled to join any kind of association. If all royalties are to be paid through CMOs, the effect would be that an artist cannot receive his/her royalties until he/she joins one of the three CMOs.”
Therefore, the court found and held that “the petitioners’ rights to associate with their PRSPs are being infringed” as result of the type of implementation of section 30A described above. Furthermore, the court considered that Safaricom’s claim that it entered into the license agreement with the copyright and related rights CMOs pursuant to the enactment and implementation of section 30A by the CMOs. Having found that the manner of section 30A’s implementation was unconstitutional, the court held that the license agreement is “irregular, unlawful and infringes on the petitioners’ constitutional rights.”
In response to this judgment, Safaricom recently issued the above statement in which it states in part that:
“The new directive [by the Malindi High Court] contradicts an earlier judgment delivered by the Nairobi High Court on 11th May 2016 under Petition Number 317 of 2015 (…) We will abide by the Malindi High Court directive, as it is the latest High Court position on this matter. However we ask that all the parties involved in this dispute – the artists, CMOs and CSPs – to seek clarity on the matter and settle on a payment structure amicable to all.”
This blogger will be closely following future developments in this area of copyright law.