Copyright Regulations Amended and Collecting Societies’ Tariffs Gazetted

KAMP PRISK

Most IP observers will concur that in the recent past the related rights collecting societies namely Kenya Association of Music Producers (KAMP) and Performers’ Rights Society of Kenya (PRiSK) have done exceedingly well for themselves in the area of legislative and policy reforms by leveraging on the goodwill from Kenya Copyright Board (KECOBO). As a result, KAMP and PRiSK have been the major beneficiaries of consecutive amendments to the Copyright Act and Copyright Regulations in 2012, 2014 and now 2015.

Recently, the Attorney General made Copyright Amendment Regulations which expressly deal with the private copying levy or blank tape levy payable to KAMP and PRiSK under sections 28 and 30 respectively of the Copyright Act. In addition, the Attorney General has also recently approved and gazetted the tariffs to be used by KAMP and PRiSK to collect royalties from various categories of users including broadcasters, telecommunications companies, service providers, business premises and vehicles both public as well as corporate.

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Collecting Societies Demand Whopping 170 Million Shillings from Leading Broadcasters in Copyright Infringement Suits

KECOBO Renews Registration of KAMP and PRiSK as CMOs. L-R: Justus Ngemu - KAMP Chairman, Clifford Wefwafwa - KAMP GM, Marisella Ouma - KECOBO ED, Angela Ndambuki - PRiSK CEO, Robert Kimanzi - PRiSK Chairman.

KECOBO Renews Registration of KAMP and PRiSK as CMOs. L-R: Justus Ngemu – KAMP Chairman, Clifford Wefwafwa – KAMP GM, Marisella Ouma – KECOBO ED, Angela Ndambuki – PRiSK CEO, Robert Kimanzi – PRiSK Chairman.

This blogger has confirmed a recent media report that the two related rights collecting societies: Kenya Association of Music Producers (KAMP) and Performers’ Rights Society of Kenya (PRiSK) have simultaneously taken five broadcasting organisations to court for infringement of copyright. The five identical suits HCCC No. 322, 323, 324, 325 & 326 of 2015 have been filed in the Commercial Division of the High Court against Royal Media Services (RMS), Nation Media Group (NMG), Standard Group (SG), MediaMax Network (MMN) and national broadcaster, Kenya Broadcasting Corporation (KBC).

PRiSK and KAMP claim that they are mandated to collect license fees on behalf of the performers and producers of sound recordings and duly notified the five broadcasters that it is under an obligation under Sections 27, 30A, 35(1)(a), 25 and 38(2) and 38(7) of the Copyright Act to pay licensing fees in respect of sound recordings and audio-visual works broadcast to the public. In this regard, the collecting societies claim that the broadcasters have all failed and/or neglected to pay the requisite license fees to KAMP and PRiSK from the year 2010 until and up to the year 2014.

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Lessons for MCSK from Nigeria: Music Copyright Society of Kenya Must Administer Rights Even Without Government License

MCSK royalties music kenya

“…there has been a bickering and attendant judicial skirmish over who is the sole Collector in Nigeria, at the time of penning this piece, the Copyright Society of Nigeria (COSON) seems to be recognized as such. However, it is an anomaly in my opinion as there could be more bodies to administer Royalty collection. In all honesty, it is doubtful if a sole collecting society can effectively subdue the difficulties experienced in the administration of Royalty collection and the Publishing industry in Nigeria.” —Mr. Akinyemi Ayinoluwa “@akinyemilaw”, Nigerian IP lawyer and blogger

It is reported that on 28th May 2013, employees of the Music Copyright Society of Nigeria (MCSN) will once again be in court facing charges of operating as a collecting society without the approval of the government regulator, Nigeria Copyright Commission (NCC). However in civil court, the latest judgment handed down by the Nigerian Federal High Court was against the Nigerian Copyright Commission (NCC), with respect to its decision and actions against MCSN. The Court on 18 March 2013 declared the actions of the NCC against MCSN as unlawful and unconstitutional and reaffirms an earlier judgment of the Court which declared Section 39 of the Nigerian Copyright Act upon which the NCC relied in taking its decisions on collective management of rights, unconstitutional, null and void.

A copy of the judgment made by the Court in this matter is available here.

Similarly in Kenya, the Music Copyright Society of Kenya (MCSK) and the government regulator, Kenya Copyright Board (KeCoBo) have not always seen eye-to-eye on certain aspects of collective management of copyright in Kenya. This apparent tension culminated in the deregistration of MCSK as a collecting society by KeCoBo in 2011. The decision by KeCoBo to renew MCSK’s license was made in mid-2012 which means that its license will be up for renewal again soon. Under section 46 of the Copyright Act of 2001, KeCoBo has the responsibility of licensing and supervising all collective management organisations (CMOs) in Kenya. KeCoBo has come up with its guidelines for licensing of CMOs and renewal of licenses for CMOs available here.

For the purposes of our present discussion, let us look closely at the above recent judgment in MCSN & 7 Ors vs. NCC & 4 Ors Suit No. FHC/L/CS/1163/12.

Read the rest of this article on the CIPIT Law Blog here.

A Tale of Two Conflicting Collective Management Organisations in Nigeria

mcsn-coson-nigeria-music-copyright

The Nigerian film industry (‘Nollywood’) is arguably one of the largest in the world, while the music industry is not far off; both estimated to be worth well over $2bn in annual net revenue.

Last week, this blogger highlighted a story by Punch Magazine from Nigeria on one of Nigeria’s most internationally acclaimed musical duos: “P-Square”. The relevant bit of that article reads:

““P-Square and our companies, Square Records and Northside Entertainment, have not joined any collecting society because we don’t want to give any organisation the power to collect royalties on our behalf without showing a keen interest in solving our greatest problem, which is piracy. It doesn’t make sense.

“I’m not against any collecting society. But come to me as an approved body recognised by the government to fight piracy and I will carry you on my shoulder because I know there will be more money at the end of the day for me. Also, I would know that my future is guaranteed.””

Assuming P-Square opted for collective administration of their rights under copyright, they would be faced with a dilemma over which collecting society to join. This dilemma exists because Nigeria currently has two rival entities, both purporting to represent the musicians of Nigeria, namely: Musical Copyright Society Nigeria (MCSN) and Copyright Society of Nigeria (COSON).

Once upon a time, MCSN was the government-sanctioned collecting society or collective management organisation (CMO) in Nigeria representing authors of musical works. This all changed circa 2009 when COSON was born and got sole approval from the Federal Government to operate as the recognised CMO for both authors of musical works and owners of sound recordings. According to COSON, their existence came about as an effort to “have one formidable national collective management organization to promote and protect the copyright of practitioners in the Nigerian music industry.”
COSON states that it was Nigerian Music Industry Coalition in 2009 that resolved to form COSON. COSON chairman explains this resolve as follows:

“What we have set out to do is to sing with one voice and end the divide and rule game which the powerful users of music have deployed for many years to pauperize musicians and the music industry in our country. Every reasonable person in our industry has long understood that with collective management, together we stand, divided we fall.”

In a 2010 ruling of Nigeria’s Court of Appeal in the case of Musical Copyright Society Nigeria [MCSN] v Compact Disc Technologies & others, it was held that MCSN has no locus standi to institute the action as owner, assignee and exclusive licensee unless it is registered as a collecting society in compliance with the Copyright Act 2004.


MCSN was incorporated and has been operating since July 20, 1984 ( a year after our MCSK’s own birth date). Although MCSN is not licensed to operate as CMO in Nigeria, it remains a formidable “association” given that it is the owner, assignee and exclusive licensee of a vast repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN.

Meanwhile, there is COSON, the government approved CMO that in recent years has been working hard to establish itself as the sole CMO in Nigeria’s music industry. Along with MCSN, COSON is also a member of CISAC.

The government, through the Nigeria Copyright Commission, has actively cracked down on the activities of MCSN, which the former claims are “illegal” as the latter is not registered as a collecting society. Last year, the Federal High Court ruled in MCSN’s favour in the case of the Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC] FHC/L/CS/35/08 where it reprimanded the NCC for acting outside the confines of both copyright law and constitutional law.

This month, the Nigerian media reported that MCSN went back to the High Court in Suit No. FHC/L/CS/1163/12, seeking N100 million as damages against the Nigerian Copyright Commission (NCC) and four others resulting from a raid carried out by the latter.

Comment:

Similar to Kenya’s Copyright Act, section 32B(3) of Nigeria’s Copyright Act is clear that: “The Council shall not approve another Society in respect of any class of copyright owners if it adequately protects the interests of that class of copyright owners.” This blogger has argued elsewhere that one society per class of rights is indeed the best way to go. However, the current state of confusion in Nigeria should be a cause for concern here in Kenya since we wish to ensure that our interests are adequately represented in Nigeria and the converse to apply here in Kenya.

Currently, Kenya, through the Music Copyright Society of Kenya (MCSK) has a reciprocal agreement with MCSN signed in 2005. This reciprocal agreement is an exclusive license in respect to public performing rights of the works forming part of the repertoires of the two societies.

Two concerns arise:

1. Seeing as MCSN is no longer recognised under copyright law as a collecting society or CMO for the music industry in Nigeria, does this mean that MCSK’s interests in Nigeria and Nigeria’s interests here in Kenya are unfavourably affected in a manner that interferes with the enjoyment and/or exercise of the patrimonial rights of the holders of the copyrights being administered? In other words, has the current agreement between MCSK and MCSN automatically fallen away due to the factual and legal situation of the latter?

2. Should MCSK consider signing with COSON? If indeed this option is being considered, has COSON given MCSK any indications as to the scope of its repertoire? i.e MCSK already has significant repertoire to give to COSON but the former may need to have some basic assurance that COSON actually hold both performing and mechanical rights assignments for the world from Nigeria authors/composers/publishers of music.

In short, let’s wait and see how these music copyright issues play out. Esteemed readers, the floor is now yours.

Editor’s note: The views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.