High Court Declares Section 30A of the Copyright Act Unconstitutional and CMO License Agreement Unlawful

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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.

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ARIPO Copyright Office Publishes Survey Findings on Status of African Collective Management Organizations

aripo member states map africa intellectual property regional organization copyright CMO survey

On the eve of its 40th anniversary, the Harare-based African Regional Intellectual Property Organization (ARIPO) has recently published the findings of a survey on collective management organisations (CMOs) conducted among its member states. A copy of the survey is available here. In the foreword, ARIPO Director General Mr. Fernando Dos Santos explains that:

“The findings [of the survey] indicate that CMOs in the ARIPO Member States are growing in numbers. It was also found that there is growth in collections of royalties and distributions. However, CMOs are also facing challenges which include insufficient or lack of awareness of copyright laws by users and the general public, users’ unwillingness to pay royalties, piracy of the copyrighted works, inadequate resources and manpower within the CMOs and inadequate availability of technologies that can be used by the CMOs.”

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Proposed Draft National Music Bill: More Licenses, More Confusion and Yet Another Fund

The Music Policy Discussion on the Draft Music Bill Kenya by Francis Muchina Elani Sauti Sol MCSK KECOBO.jpg-large

The latest draft of the proposed National Music Bill has been released by the Permanent Presidential Music Commission (PPMC). PPMC requests all stakeholders and interested parties to circulate it widely and email back (to: directorppmc@gmail.com) any contributions, comments, reactions, etc for consideration and possible inclusion. A copy of the draft document is available here.

This blogpost highlights some of the key features of the PPMC draft document including an apparent conflict with existing intellectual property (IP) legislation.

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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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High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

skiza safaricom caller ringback tone service copyright license collective management society

 

Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).

Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.

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No Making Available Right, No Royalties from Multichoice Signal Distribution

GRH Consulting Diagrammatical View of Broadcasting Copyright Satellite Signal Distribution

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 [2016] 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.

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