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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Pay TV Disputes Copyright in Free-to-Air Broadcast: Appeal Case of Wananchi Group Uganda v. New Vision

Robert Kabushenga New Vision CEO Bukedde TV Zuku

This blogger has come across a recent ruling by Uganda’s Court of Appeal in the case of Wananchi Group (U) Ltd v. The New Vision Printing & Publishing Co. Ltd. The background of this case is as follows: New Vision had filed an application against Wananchi in the High Court for a temporary injunction seeking to restrain the Wananchi from further infringement of the New Vision’s copyright in the production, air transmission or broadcast of “Bukedde Television” through Wananchi’s Zuku Television.

In the High Court, New Vision contended that Wananchi continued to infringe on the New Vision’s copyright by retransmitting Bukedde TV for private benefit and for personal economic gain without the consent or licence of the owner despite express warning. The High Court agreed with New Vision and granted the order of a temporary injunction. This brings us to the present case of Wananchi’s application in Court of Appeal for an interim order of stay of execution of the order of the lower court.

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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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Supreme Court of Kenya Addresses ‘Fundamentals’ of Copyright Law in Digital Migration Case

Africa Digital Network Ad 1

“In resolving this dispute, account must be taken of the nature of the resource (Spectrum) being contested, the economic fundamentals under-guarding its capitalization, the country’s obligations under international law, and the values decreed in our Constitution. At the end of the day the people of Kenya, local investors, international investors all have a stake. Of course care must be taken so as not to leave this resource to “the tragedy of the commons”. At this stage, we recall the words of Mr. Kimani Kiragu when he urged thus:
“I started by taking you on a flight to the Caribbean and referring to, or quoting Mr. Robert Marley. Let me come back home with regard to the three principles…If I could refer to our very own Ken Wa Maria, ‘these things, these are my things, these are your things, these are our things, these are the fundamentals’.” -Mutunga, CJ & P at para 388.

In the recent case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, the Supreme Court unanimously ruled on several contentious copyright issues relating to Kenya’s ‘imminent shift’ from analogue terrestrial broadcasting to digital terrestrial broadcasting on or before the international analogue switch-off date of June 17, 2015. A copy of the judgment is available here. This blogpost will examine how the Supreme Court addressed the following issues relating to copyright law, namely: (i) whether the Communications Authority of Kenya (CAK) formerly known as Communications Commission of Kenya (CCK) violated the intellectual property (IP) rights of three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group by authorizing two broadcast signal distributors (BSDs) namely Pan African Network Group (PANG) and Signet Kenya Limited along with pay TV broadcasters such as StarTimes Kenya Limited and GOtv Kenya Limited to transmit the broadcasts of the aforementioned FTA broadcasters without the latter’s consent?; and (ii) whether the issue of infringement of IP rights was properly before the High Court, in the petition filed by the FTA broadcasters for the enforcement of their fundamental rights and freedoms?

The digital migration case started off when three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group went to the High Court of Kenya in the case of Royal Media Services Ltd v Attorney General & 2 others [2013] eKLR in a bid to stop the migration from analogue to digital television broadcasting. In its prayers to the court, the petitioners sought, inter alia, an order of permanent injunction restraining several digital broadcasters from broadcasting, distributing or in any way interfering with the Petitioners’ programs, broadcasts, copyrighted material and productions or in any way infringing the Petitioners’ intellectual property rights. Therefore one of the issues for determination in this case was whether these digital broadcasters have breached and or violated the petitioners’ intellectual property rights.

Majanja J. sitting in the High Court dismissed as frivolous the petitioners’ allegations against the pay TV broadcasters for IP rights infringement. According to the learned judge, despite the inclusion of IP rights under Article 40(5), these rights are still considered as ordinary rights as opposed to fundamental rights and freedoms. The court therefore held that only cases of violation of fundamental rights and freedoms warrant a constitutional petition in the High Court. Therefore where IP rights violations occur, the affected person must rely on the specific IP regime established by law to address the area of IP concerned.

Dissatisfied with Majanja J’s decision, the three FTA broadcasters appealed to a three-judge bench sitting in the Court of Appeal in the case of Royal Media Services Limited & 2 others v Attorney General & 8 others [2014] eKLR. Two out of the three appellate judges (Nambuye and Maraga JJA) set aside the judgment of Majanja, J in the High Court and made two IP-related findings in their separate but concurring judgments, namely:- firstly, that Majanja J. erred in law in holding the IP rights of the three FTA broadcasters were not violated by the pay TV broadcasters in broadcasting the former’s programs and content without consent; and secondly, that Majanja J. erred in law in holding that infringement of intellectual property rights could not be the subject of a constitutional Petition. This blogger expressed his shock and disappointment at this majority view of the Court of Appeal here.

This brings us full circle to the present decision by the Supreme Court.

From the outset, it is refreshing to see the Supreme Court zeroing in on the copyright issues in this digital migration case. Firstly, the court engages in the important exercise of determining whether or not a chain of title exists between the alleged infringers and the three FTA broadcasters’ rights. In the case of Signet and PANG, the Supreme Court finds a myriad of letters between the CCK and the three FTA broadcasters showing that the latter had given permission to Signet and PANG (and its pay TV operator StarTimes) to carry their respective FTA broadcasts during the pilot phase of the digital migration process. In the case of GOtv Kenya, it was successfully shown that GOtv was an affiliate of MultiChoice and that the latter had signed Channel Distribution Agreements with all three FTA broadcasters.

However, the underlying issue up for determination by the apex court was whether the conduct of CCK/CAK licensees pursuant to Regulations 14(2)(b) and 16(2)(a) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 (the so-called “must carry” rule) could be reconciled with the constitutional right to protection of intellectual property as well as the provisions of the Kenya Copyright Act.

These Regulations provide as follows:

“14. Subscription broadcasting service licenses and subscription management services.
(1) The Commission may upon application, in the prescribed form, grant a subscription broadcasting services licence for —

(a) satellite broadcasting services;

(b) cable broadcasting services; and

(c) subscription Management services.

(2) The Commission may require a licensee granted a licence under paragraph (1) to —
(…)
(b)provide a prescribed minimum number of Kenyan Broadcasting channels.”

“16(2)(a) The Commission may require a person granted a licence under paragraph (1) to distribute on its digital platform free to air and subscription broadcasting services and related data on behalf of other licensed broadcasters.”

Respectfully this blogger disagrees with the Supreme Court’s application of ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc. & 6 Others, a case decided by the Supreme Court of the Philippines. The point of disagreement is definitional in nature. In the Kenyan context, the Copyright Act defines “broadcast authority” to include “any other broadcaster authorised by or under any written law”. Therefore this means that if Multichoice (which appears to be akin to PMSI in the Philippine case) were licensed to “broadcast” in Kenya, as defined by the Copyright Act, then it would be considered a broadcast authority. In this regard, it is important to note that the definition of “broadcast” under the Copyright Act includes “transmission by satellite”. It follows that Signet, PANG and StarTimes are clearly broadcast authorities since they are all licensed to broadcast by CAK formerly CCK. Therefore it is this blogger’s respectful opinion that the Supreme Court erroneously found that no rebroadcasting had taken place without considering the definition of “broadcast authority” provided in the Copyright Act.

With respect, this blogger submits that the Supreme Court’s attempt to couch the “must carry” rule in fair dealing terms merely confirms the ‘definitional’ argument discussed above. In this connection, this blogger respectfully questions why the Supreme Court brings up ‘fair dealing’ (one of the defences in copyright infringement suits) yet it claims that no act of copyright infringement (i.e. rebroadcasting) was committed by the appellants. In addition, this blogger questions why the Supreme Court chose to rely on a 2002 working paper of World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights yet there is no mention made of the 3-step test under the Berne Convention and TRIPs Agreement, both of which are binding in Kenya.

The Kenya Copyright Board (KECOBO) seems to concur with this blogger and has also expressed its disagreement with the Supreme Court’s decision. Edward Sigei from KECOBO has publicly stated that:

“The court … failed to explain ‘the how’ by way of express provisions of the Copyright Act and the decision on plain reading of the definitions of the Act is erroneous. Clearly for it to be transmitted, the analogue signal must be converted or modified before it is made available to the public in the digital platform which is contrary to Broadcasters copyright which is not limited under section 29 of the Copyright Act as declared by the court.”

On the issue of constitutional IP protection, this blogger is pleased that the Supreme Court confirmed the precedent set by the learned Majanja J., as discussed above. In this regard, the court held:-

“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. (…) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim,and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”

On this point, KECOBO has expressed its concern with the decision by the Supreme Court. Here is a quote from Edward Sigei from KECOBO:

“…the application of the principle of Avoidance in case of Intellectual Property is a setback to owners of IP whose enforcement efforts are frustrated by lack of clear enforcement provisions under the relevant statutes.”

This blogger will be keenly following developments in copyright legislation and jurisprudence arising from the Supreme Court’s decision.

 

Last updated: March 2015.

Anton Piller Orders Issued Against Kenya Broadcasting Corporation and One FM for Intellectual Property Rights Breach

IPKenya has been informed that the Music Copyright Society of Kenya (MCSK) conducted raids on two broadcasting stations, namely the popular urban radio station, One FM and the national broadcaster, Kenya Broadcasting Corporation (KBC) on January 31, 2014. These raids were carried out after MCSK successfully obtained Anton Piller orders in suits filed for copyright infringement.

In its application for Anton Piller orders against the two stations, MCSK’s lawyers relied on the following two grounds:

“1. The Defendant is engaged in and will continue to be engaged in unlawful broadcasting and reproduction of copyrighted musical works falling within the Plaintiff’s repertoire. Therefore this application seeks to enable the Plaintiff to take inventory and seize digital database(s) and libraries of musical works, related records and documents in the premises of the Defendant.

2. The Plaintiff has a well-founded apprehension that infringing copies of fixations of copyrighted musical works and related materials in possession of the Defendant will be hidden, disappear or will not be available at the time of the hearing unless this matter is heard as a matter of urgency and the orders sought granted.”

In the case of KBC, MCSK alleges that the national broadcaster owes over KES 3,000,000 in royalty arrears since 2012. This figure encompasses the controlled music content in KBC’s television station Channel One as well as its radio station. However, according to MCSK, the case of One FM illustrates the most flagrant infringement of copyright as the radio station has never taken out a broadcasting license from MCSK despite being in operation for several years. One FM’s royalty arrears are estimated to be well over KES 4,000,000.

On hearing the application by MCSK, the Court sitting at Milimani ordered that an order be issued under section 37 of the Copyright Act allowing MCSK by itself, its servants, employees or agents to access or enter the offices or premises of the Defendnat to observe and take inventory of all musical works the infringing stations broadcast.

A copy of the court order obtained against KBC can be viewed below. A similar order was issued against One FM:

KBC COURT ORDER

In a recent press statement, the Chief Executive at MCSK states:

“MCSK has over the past years been negotiating with some of the defaulting broadcasters and it was after lengthy negotiations where ONE FM, KBC and others in the pipeline, failed, refused and / or neglected to comply with the legal requirement for taking of broadcasting license from MCSK. There are several other broadcasting stations that have been lined up for Court action if they do not acquire the MCSK license such as MEDIA MAX LTD, SOUND ASIA.

MCSK shall be seeking a permanent injunction to restrain both ONE FM and KBC from broadcasting any and all musical works in KENYA since MCSK controls both local and international works. This could then mean that both ONE FM and KBC will be off air when the permanent injunction is granted.

It really would be a shame since the two media houses have positioned themselves as promoting local music yet they are not paying royalties. The local musicians who they seek to promote cannot at all benefit since no monies are paid to them by MCSK since no royalties are paid by the said media houses.”

Comment:

The recent Annual Global Economic Survey of Authors’ Society Royalty Collections by International Confederation of Authors and Composers Societies (CISAC) reveals that 7.8 Billion Euros was collected worldwide. 75% of these collections were from public performance royalties, which is predominantly made up of collections from broadcasters. Within the CISAC African region, MCSK is ranked in the top 3 highest royalty earners despite broadcasters in Kenya being among the lowest royalty payers in proportion to their music usage. It is estimated that MCSK stands to collect over KES 110,000,000 in royalty arrears from television and radio broadcasters spread throughout the country.

Current statistics from the Communication Commission of Kenya (CCK) indicate that there are over 100 licensed FM frequencies and over 15 TV frequencies therefore MCSK ought to be collecting about KES 52,000,000 annually in broadcasting royalties alone!

This situation will become even more interesting as Kenya expects a sharp rise in broadcasters once digital migration finally receives the green light from the Court of Appeal.

Intellectual Property and Public Events: Rights of Organisers, Participants and Third Parties

amateur photographer

I am hesitant to believe the Defendants’ argument on the issue of intellectual property rights to the event since the traditional common law view that has prevailed is that it is difficult to attach ‘any precise meaning to the phrase “property in a spectacle”. A spectacle in this case refers to an event. A “spectacle” cannot, therefore, be “owned” in any ordinary sense of that word. – Mabeya J. in AMCIL v Joseph Mathenge Mugo & ABMCIL HCCC 242 of 2013 at paragraph 29.

In the recent case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & Access Business Management Conferencing International Ltd. HCCC 242 of 2013 (hereafter the HR Symposium case), Justice Mabeya held that there are no intellectual property (IP) rights in a spectacle or event dubbed “Human Resource Symposium”. In holding that there is no IP in a spectacle, Justice Mabeya cited the Australian case of Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) (hereafter the Taylor case) where Latham CJ stated that: “The law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”

Read the rest of this article here.