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.

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Blind Opposition to Caller Ringtone Deal between Safaricom and Collecting Societies: High Court Case of Irene Mutisya & Anor v. MCSK & Anor

Robert Collymore CEO Safaricom

This blogger has recently come across Nairobi High Court Civil Case No. 262 of 2015 Irene Mutisya & Anor v. Music Copyright Society of Kenya & Anor. In this case Mutisya and another copyright owner Masivo have filed suit against Music Copyright Society of Kenya (MCSK) and mobile network operator Safaricom Limited for copyright infringement. The copyright owners filed an urgent application on 30th July 2015 for a temporary injunction to restrain Safaricom from remitting license fees to MCSK pursuant to a recently concluded license agreement for caller ring-back tones (CRBT) made available through Safaricom’s Skiza platform. The copyright owners also asked the court to restrain both Safaricom and MCSK from implementing the CRBT License Agreement pending the hearing of the application.

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Legality of Equitable Remuneration Challenged: High Court Petition of Xpedia & 4 Ors v. Attorney General & 4 Ors

equitable remuneration

Editor’s Note: On 31st July 2015, the urgent application in this Petition No.317 of 2015 dated 29th July 2015 was heard and certain interim orders were granted. A copy of the orders is available here.

This blogger has confirmed a recent media report that two content service providers and three copyright owners have jointly filed a petition challenging the constitutionality of the right to equitable remuneration under the now infamous section 30A of the Copyright Act. The Petition was filed against the Attorney General, Kenya Copyright Board (KECOBO), Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRiSK) and Music Copyright Society of Kenya (MCSK).

As stated above, the crux of the Petition filed by Xpedia Management Limited, Liberty Afrika Technologies Limited, Elijah Mira, Francis Jumba and Carolyne Ndiba is that KAMP, PRiSK and MCSK should be stopped by the court from receiving or collecting royalties under section 30A of the Copyright Act in respect of works owned or claimed by the Petitioners.

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Remuneration Rights vs. Exclusive Rights: IFPI, SCAPR, Kenya Copyright Board Clash over Removal of Section 30A

music recording studio

The International Federation of Musicians (FIM) reports that powerful record label umbrella body International Federation of the Phonographic Industry (IFPI) has written to Kenya Copyright Board (KECOBO) demanding the removal of Section 30A of Kenya Copyright Act. (See our previous discussions of section 30A here)

According to FIM, the criticism of section 30A by IFPI is an unacceptable “step backwards, the implication of which is that all treaties guaranteeing artists’ rights would be made devoid of any meaning (Rome Convention, WPPT, Beijing Treaty).”

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High Court Affirms Role of Collecting Society in Copyright Enforcement: Case of Ruma Lodge v. MCSK

This blogger has recently come across a recent judgment of the High Court in the case of Maurice Owino Onyango v Music Copyright Society of Kenya [2015] eKLR. In this case, Music Copyright Society of Kenya (MCSK), the sole collecting society or collective management organisation (CMO) for authors, composers and publishers of musical works, was the respondent in an appeal in the High Court challenging the decision of the Magistrates’ Court in a case filed against MCSK for malicious prosecution. Majanja J sitting in the High Court found in favour of the CMO and upheld the judgment of the lower court.

A copy of the judgment is available here.

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Kenya Digital Reading Summit 2015: Digital Rights in Book Publishing – Revisiting Authors Agreements

print book versus electronic book a visual overview zoe sadokierski

“In Kenya, the publishing industry is estimated to be about 12 billion Kenyan shillings a year (US $150 million) but 95% of that comes from the sales of textbooks. The sales of trade books has not been growing that quickly, I am afraid, but we are trying to change that. And bookstore sales are down as well. But as a small publisher, we have to respond to the market.” – Publishing Perspectives Interview with David Waweru, CEO of WordAlive Publishers on January 11, 2013.

“Our publishers—a good number of who are plain dishonest and shady individuals—are obsessed with publishing for the school market. They fight tooth and nail to have their books accepted as approved school texts. That is not a good thing at all because incidents of bribery have been reported in the process, which ends up putting dubious books in students’ hands. Outside of this there hasn’t really been a vibrant market for fiction. As a result writers have been bending over backwards to produce work that can fit in this mould. This in my thinking, isn’t healthy. Writers, as social commentators and critics, need the space to think creatively without inhibition. Some authors try to break out of this straight-jacket by self-publishing, but usually they don’t go far. Soon they encounter the biggest pest in the business, the book pirate, who is vicious in Kenya and operates with impunity, earning from what he didn’t sow in—we suspect—collusion with the law enforcers.” – Africa39 Blog Interview with Kenyan author, Stanley Gazemba on August 11, 2014.

“I love reading much more than I love writing. I suspect if I did not like reading, I would not be a writer. The well-written books inspire me to be a better writer. The badly written books teach me how not to write. Kenyan publishers are, sadly, not doing much to ensure that other readers and I get more of the former and less of the latter. Their inability to respond to submissions timeously; poor editing; unfavourable contracts; and poor marketing are but some of the problems beleaguering the publishing industry.” – Daily Nation, January 10, 2015: “Problem with Kenyan publishers” by Zukiswa Wanner.

Editor’s Note: The Digital Reading Summit 2015 themed “Immerse Yourself in the Digital Era”, has been organised by the Kenya Publishers Association (KPA) and Worldreader and is scheduled to be held between 21-22 April 2015 at Pride Inn Hotel in Nairobi. The following day, April 23rd, is World Book and Copyright Day!

The business of publishing rests on a contract between creators (authors) and those who invest in bringing their work to market – publishers. In many jurisdictions (including Kenya) it is necessary that the contract adopt a written form and this is also the advisable way to proceed even where verbal agreements are valid. To avoid misunderstandings a written contract should always be issued at the conclusion of discussions and verbal agreement between the parties.

In the contract with the publisher the author licenses the rights of reproduction and distribution over a work, thus providing the publisher with the legal means necessary for publication. In Kenya, section 33(3) of the Copyright Act requires that any exclusive license between an author and a publisher must be in writing. An important Kenyan case in the area of book publishing and copyright law is Njeri Wangari & Another v. Oxford University Press (E.A) Ltd. [2012] eKLR discussed previously here.

Traditionally, publishers asked mainly for the right to publish authors’ book, sometimes in multiple formats and languages. Now many publishers demand broader rights, often including electronic/digital rights.

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#ipkenya Weekly Review (18th-25th May, 2014)

gado cartoon anglo fleecing corruption AG

Since our last weekly review, the Minister in charge of Copyright and Related Rights in Kenya namely, the Attorney General has under siege for his alleged involvement in the Anglo Leasing contracts scam. This blogger has the full story here. As always, your comments are invited.

Meanwhile in the intellectual property (IP) world, here are some of the top news and views from Kenya and beyond:-

– OpenAIR presents its findings at WIPO Seminar on Intellectual Property & the Informal Economy [WIPO YouTube]

– Copyright Society of Nigeria signs historic royalty agreement with 400-member umbrella body for broadcasters [COSON]

– No More Substantive Examination of Utility Models in Kenya [AfroIP]

– Hidden Treasure and the New Colonialism: Why South Africa Must Protect Its Intellectual Property [SACSIS]

– Nigeria: Nollywood from an intellectual property perspective [WIPO Magazine]

– Kenya: The Maasai ‘Shuka’ Has Evolved Into A Brand [The Star]

– South African Tech firms can now transfer intellectual property offshore [TechCentral]

– Tanzania: Copyright Society and Revenue Authority devising a banderole system for copyright administration [TZ Daily]

– Nigerian Economy Loses N82 Billion Yearly to Software Piracy – BSA [Daily Independent]

– Kenya: The First Thing We Do, Let’s Kill All The Lawyers [BrainstormKE]

– IP Rights and Digital Content: Kenya’s New Headache [ModelEmployee254]