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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In Support of An Intellectual Property Association of Kenya

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It was in response to Isaac’s post on Afro-IP that this blogger put forth the idea of setting up a bona fide association for intellectual property practitioners and professionals in Kenya. Many of us may have pondered upon this very topic in the past but to-date nothing seems to have materialised.

In the past weeks, there is renewed buzz around establishing such an IP Association, tentatively christened as Kenya Association of Intellectual Property Practitioners (KAIPP).

Within Africa, the only other national IP Association is in South Africa. Established in 1952, the South African Institute of Intellectual Property Law (SAIIPL) is an association representing “some 164 patent attorneys, patent agents and trade mark practitioners in South Africa who specialise in the field of Intellectual Property Law”. According to its official site, SAIIPL states that:-

“It [SAIIPL] is widely regarded as the custodian of South Africa’s intellectual property rights, and comprises practicing attorneys, academics, practitioners in businesses and in general, people interested in the protection and enforcement of intellectual property rights. The members of the SAIIPL represent the majority of national and international businesses who have built their businesses on brands, innovation and technology, and who protect their interests through our country’s intellectual property laws.”

SAIIPL has four types of memberships: Fellow, Associate, Student and Ordinary. It is important to note that unlike Kenya, South Africa has an institutionalised system of IP qualifications. The first is the Patent Attorneys qualification which is a statutory qualification under control of the Patent Examination Board. There is also the Trade Mark Practitioners qualification is offered by SAIIPL to provide proficiency in trade marks and related fields. An Attorney with this qualification is entitled to Fellowship of SAIIPL. A quick browse through SAIIPL’s membership list reveals that the whos-who of South African trademark and patent lawyers are on the list including Prof. Owen Dean (@ipchair), Darren Olivier (@afroIP) as well as this blogger’s former classmate, Jeremy Speres (@jeremysperes), among many others.

Read the rest of this article on the CIPIT Law Blog here.