This week, Kenya Copyright Board (KECOBO) has published a set of draft amendments on collective management organisations (CMOs) available here. KECOBO has requested the public to give comments on these ISP provisions through the email account: firstname.lastname@example.org. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. This blogpost is a commentary of the key features of the draft CMO provisions from KECOBO.
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.
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”.