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.

Continue reading

Watching World Cup 2014 in Kenya: FIFA’s Media and Public Viewing Rights

Tonight the Brazil 2014™ FIFA World Cup™ (WC) kicks off in the South American nation of Brazil! As previously discussed here, FIFA has developed and protected an assortment of logos, words, titles, symbols and other trade marks to be used in relation to the 2014 FIFA World Cup™ (the Official Marks). In order to attract funding to stage such a large event, FIFA offers its partners, sponsors and supporters the exclusive rights to use of the Official Marks for promotional and advertising purposes.

In this post, we shall consider FIFA’s intellectual property (IP) rights in the broadcasts and public view of the WC. It is clear that all copyright and other (IP) rights subsisting in, and all goodwill associated with, broadcast coverage of the WC are exclusively owned by FIFA and protected by domestic and international law. In this regard, FIFA distinguishes between broadcasters who are defined as Media Rights Licensees and exhibitors who stage Public Viewing Events in relation to any matches of the 2014 FIFA World Cup Brazil™.

Read the full article here.

Television Wars and Intellectual Property Protection: CFC Stanbic Magnate Show and Samantha’s Bridal Show

Kenya has had two High Court rulings in two separate cases in the space of two weeks, both dealing with copyright infringement in television shows. In this blogpost, these rulings will be analysed bearing in mind that both these cases are still on-going.

In the case of Oracle Productions Limited v Decapture Limited & 3 others [2014] eKLR (the Magnate case), Oracle claimed Decapture and others have infringed the latter’s copyright in its reality game show. Oracle is the copyright owner of a literary work describing a reality game show styled “Young Entrepreneurs” and registered with the Kenya Copyright Board as KCB 0831. Decapture is the copyright owner of a literary work describing a reality game show titled “The CFC Stanbic Bank Magnate” (the Magnate show) and registered with the Kenya Copyright Board.

Read the full article here.

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.