In Regulation We Trust: Kenya Copyright Board Proposes New Set of Administration and Enforcement Provisions

kenya copyright board kecobo

To date, Kenya Copyright Board (KECOBO) has published two sets of draft proposals of amendments to the Copyright Act on collective management organisations (CMOs) available here and on intermediary liability for internet service providers available here. KECOBO has now published a third set of draft legislative proposals namely a draft copyright regulations 2016 available here. These three sets of draft proposals will be the subject of a day-long consultative public forum to be held next week on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. For those who will not be able to attend the public forum, KECOBO has set up an email account to receive your comments on the drafts, which is: publicforum@copyright.go.ke. This blogpost is a commentary of the key features of the draft copyright regulations 2016 proposed by KECOBO.

Continue reading

Proposed Copyright Act Amendments on Regulation of Collective Management Organisations

kecobo kenya copyright board

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: publicforum@copyright.go.ke. 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.

Continue reading

High Court Upholds Freeze of Collecting Society’s Bank Accounts: Ruling in MCSK v Chief Magistrate, Inspector General

Music-Copyright-Society-of-Kenya-MCSK-CEO-Maurice-Okoth People Daily

This blogger has recently come across an astute ruling by the High Court in the case of Music Copyright Society of Kenya v Chief Magistrate’s Court & Inspector General of Police [2015] eKLR. Justice L. Kimaru sitting in the High Court was approached by the authors’ collecting society, Music Copyright Society of Kenya (MCSK) to stay orders issued by the Magistrate’s Court freezing all the bank accounts of MCSK following a request by the Serious Crimes Unit under the Directorate of Criminal Investigations (DCI). DCI requested that MCSK’s accounts be frozen as it investigates complaints made by MCSK members in regard to alleged misappropriation and theft of funds at the collecting society.

After carefully evaluating the facts before him, Kimaru J ruled that the investigations were lawful and based on several complaints received by DCI from MCSK members and that the orders to freeze MCSK’s accounts were within the precincts of the law.

Continue reading

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.

Judge Who Saved Music Copyright Society To Be Removed from Judiciary

Last week, the Judges and Magistrates’ Vetting Board determined that Lady Justice Jeanne Wanjiku Gacheche of High Court was unsuitable to continue serving as a Judge. This determination was made pursuant section 23(1) of the Sixth Schedule to the Constitution and sections 13, 18 and 21 of the Vetting of Judges and Magistrates Act No. 2 of 2011.

This determination is available in full here.

During the hearing before the Vetting Board, the judge was questioned about her conduct in “issuing blank conservatory orders as requested by three insurance companies”. The Law Society of Kenya complained that “orders of this kind were completely inappropriate because of their blanket nature. Furthermore, they had been issued on an ex-parte basis for long periods of time, without the judge having taken into account opposing argument.”

In the same vein, IPKenya believes that KECOBO also could and should have filed a complaint against this very Judge. As many may recall, on May 31 2011 the Music Copyright Society (MCSK) moved to the Constitutional and Judicial Review Division of the High Court seeking leave to apply for judicial review orders of certiorari to quash KECOBO’s decision to deregister MCSK as a CMO. Gacheche J made the following controversial orders in favour of MCSK:

“3. THAT the granted leave do operate as a stay to stay the implementation/enforcement of the decision by the Respondent (KECOBO) signified by the letter dated 1st April, 2011 purporting to revoke the licence of the Applicant (MCSK) until 27th July, 2011 or until further orders are given by the court.
4. THAT the grant herein do operate as a stay to stay the implementation/enforcement of the decision by the Respondent (KECOBO) published in Gazette Notice N. 5093 on 6th May, 2011 purporting to deregister the Applicant as a collecting society for music composers, authors and publishers be stayed until July 27 2011 or until further orders are given by the court.”

Indeed, many at the time questioned Gacheche’s orders especially given the prevailing state of affairs surrounding MCSK and the reasons for deregistration given by KECOBO.

This matter has been in court since these orders were issued on 2nd June, 2011. On April 23, 2012, a Press Release issued by the CEO of MCSK stated as follows:

“Music Copyright Society of Kenya (MCSK) is pleased to inform its members and the general public that MCSK has reached an agreement with the Kenya Copyright Board (KECOBO) for the licensing and issuance of MCSK with a current certificate as a collective management organization. The agreement was reached following intervention by the Honorable Attorney General who advised the parties to negotiate the terms of licensing of MCSK for the benefit of the music industry in Kenya. The agreement provides for MCSK license to be effective 1/04/2012 and the license period to be for one (1) year renewable as provided for under the Laws of Kenya.”

IPKenya promises to revisit this topic in a forthcoming journal article titled: “Towards Effective Regulation of Collective Management Organisations in Kenya: Lessons from the Deregistration of the Music Copyright Society of Kenya”