This week, Netflix, the popular American multinational subscription video on demand (SVoD) internet streaming media service provider announced that it’s service has gone live globally. Kenya is among 130 countries that can now access internet streaming TV from Netflix. In Kenya, Netflix is now available via their official website: https://www.netflix.com/ke/ which means that for one monthly price Kenyan consumers can sign up to enjoy Netflix original series as well as its huge catalog of licensed TV shows and movies simultaneously with the rest of the world. As of October 2015, Netflix had 69.17 million subscribers globally, including more than 43 million in the United States of America.
This blogger has recently come across a judgment by the Court of Appeal in Nigeria in the long-running case of MCSN v. Details (Nig.) Ltd (CA/L/506/1999). In this case an exparte order had been obtained by MCSN against Details for unauthorized use of musical works. Details raised objections on the ground that MCSK lacked locus standi to bring the action. Details noted that since MCSN had provided evidence that it represented more than two million artistes, it was practically performing the functions of a collecting society and therefore required the approval of the Nigerian Copyright Commission (NCC) to carry on the activities of a collecting society.
MCSN denied suing as a collecting society but rather as an owner, assignee and exclusive licensee as contemplated in Section 15 of the Act. Having considered all the evidence, inclusive of the deed of assignments executed with members of MCSN which clearly spelt out that the activities to be undertaken were those within the purview of the attributes of a collecting society, the court ruled that: “it is for the foregoing reasons that I have come to the inexorable conclusion, after deep reflection, that the plaintiff is a collecting society. Not having been registered pursuant to Section 32B(4) of the Copyright Act, it cannot be permitted to operate as such body. To do so would be tantamount to subverting not only the letter but also the spirit of the copyright laws of this country”.
The High Court of Kenya sitting at Nakuru has recently handed down an interesting judgment in the case of Republic v Kenya Association of Music Producers (KAMP) & another Ex-Parte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (Suing Through Their Trustees)  eKLR. A copy of the judgment is available here. In this case, Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association sought judicial review orders of prohibition to restrain two collective management organisations (CMOs) from collecting licence fees and or levies from the membership of the Association. The CMOs in question: Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK), two related rights CMOs representing owners of sound recordings and performers respectively.
The crux of the Association’s case against the CMOs is as follows:
“It is argued that the proposed levies and licences were never communicated to their association or any of the members, and that as they were not notified, or invited to participate in their formulation and approval nor gazetted/published, the Respondents [CMOs] failed in their duty to communicate the passage and approval of the levies to them, they are in breach of rules of natural justice by withholding information that would affect them economically and financially and a breach of their constitutional rights as enshrined in Article 43 of the Constitution. (…)”
According to media reports here, Finserve Africa Limited, a subsidiary of the multi-billion shilling Equity Group Holdings Ltd has been threatened with court action by Equitel Insurance Agency Ltd over the use of the name “Equitel” in connection with its telecommunication network operated using the now controversial ‘thin SIM’ technology. It is reported that Equitel has issued Equity with a cease and desist notice in which the former terms as unlawful the use of its trade mark which includes the name “Equitel” by Equity. Therefore Equitel has reportedly demanded that Equity desist from using the trade mark, including withdrawal of all publicity and advertising materials that contain this word.
In reply to Equitel’s claims, it is reported that Equity’s counsel stated in a letter as follows:-
“Our client is the proprietor of Equity Insurance Agency registered as such in 2007, to provide insurance services to its customers. Therefore, registration of Equitel Insurance Agency was targeted to misrepresent to the public that it was offering our client’s insurance services (….) The mere fact that your client may have been the first to register the trade name does not override the common law protection of the name, goodwill and reputation amassed by our client over the years”
In this connection, it is reported that Equity accused Equitel of using insider knowledge to set up its operations, given that it was an account holder at the bank and had first-hand experience of the services Equity Insurance was offering and, therefore, sought association in the registration of its own business name.
This blogger will be keenly following this dispute in the event the matter is not settled amicably and ends up before the courts for determination.
Recently, the people of Zimbabwe went to the polls in a referendum vote for the acceptance or rejection of a draft new Constitution to replace the Lancaster Constitution of 1980, tied with their independence from Britain in 1980.
A copy of the Constitution Select Committee (COPAC) Final Draft Constitution is available here.
Local media reports now indicate that Zimbabweans have voted in overwhelmingly in favour of the new Constitution.
This blogger has been going through Zimbabwe’s new Constitution and came across three interesting provisions, as quoted below:
(2) The State and all institutions and agencies of government at every level, and all Zimbabwean citizens, must endeavour to preserve and protect Zimbabwe’s heritage.
33 Preservation of traditional knowledge
The State must take measures to preserve, protect and promote indigenous knowledge systems, including knowledge of the medicinal and other properties of animal and plant life possessed by local communities and people.
71 Property rights
(1) In this section –
property means property of any description and any right or interest in property.
Read the rest of this article over at the CIPIT Law Blog here.