“…the mere lack of a legal regime in our jurisdiction that address the question image rights cannot be taken to mean that persons who suffer wrongs cannot seek redress from courts of law when in actual fact they are aggrieved.” – Hon. Justice Peter Adonyo in Asege Winnie v. Opportunity Bank (U) Ltd & Anor  UGCOMMC 39
This blogger has come across a recent High Court judgment from Uganda in the case of Asege Winnie v. Opportunity Bank (U) Ltd & Anor  UGCOMMC 39 which sheds new light on the emerging topic of personality rights and protection of image rights, which is not catered for in a perfect “unified” legal system but rather in a combination of rights and causes of action under the Constitution, common law and various statutes on intellectual property, defamation and consumer protection.
“Whereas the President had the power to appoint the Chairman of the Anti-Counterfeit Agency, that appointment had to be in compliance with the Constitution and the relevant Legislation since, as I have stated herein above, the President in undertaking his executive functions does so on behalf of the people of the Republic of Kenya and has to bow to the will of Kenyans as expressed in their document delegating their sovereign powers to inter alia the executive, the Constitution. It is the Constitution which sets out the terms under which the delegated sovereign power is to be exercised and those to whom the power is delegated must adhere to it…” – Excerpt from the Judgment by Mr. Justice G.V. Odunga on December 16th 2015.
Towards the end of December 2015, the High Court, in one of its boldest judgments yet, struck down President Kenyatta’s appointment of Polycarp Igathe as Chairman of the Anti-Counterfeit Agency (ACA). Last month, the Cabinet Secretary for Industrialisation and Entreprise Development responded to the High Court judgment by (re-)appointing Igathe as ACA Chairman vide Gazette Notice No. 368 published on January 22nd 2016.
**Update (08/02/16): This blogger has been reliably informed that the above (re-)appointment of Igathe by the Cabinet Secretary has been challenged and an order of stay has been issued by the High Court. More details to follow.
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  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.
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.
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.
The High Court of Kenya sitting at Nakuru has recently handed down an interesting judgment in the case of Republic v Kenya Association of Music Producers (KAMP) & another Ex-Parte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (Suing Through Their Trustees)  eKLR. A copy of the judgment is available here. In this case, Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association sought judicial review orders of prohibition to restrain two collective management organisations (CMOs) from collecting licence fees and or levies from the membership of the Association. The CMOs in question: Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK), two related rights CMOs representing owners of sound recordings and performers respectively.
The crux of the Association’s case against the CMOs is as follows:
“It is argued that the proposed levies and licences were never communicated to their association or any of the members, and that as they were not notified, or invited to participate in their formulation and approval nor gazetted/published, the Respondents [CMOs] failed in their duty to communicate the passage and approval of the levies to them, they are in breach of rules of natural justice by withholding information that would affect them economically and financially and a breach of their constitutional rights as enshrined in Article 43 of the Constitution. (…)”
This blogger has recently come across the case of Bernsoft Interactive & 2 Ors v. Communications Authority of Kenya & 9 Ors Petition No. 600 of 2014, a recently filed constitutional petition seeking injunctive orders to compel internet service providers (ISPs) in Kenya to block websites engaged in piracy and declaratory orders that the State has failed in its constitutional and legal obligations to protect the intellectual property rights of Kenyans. The state organs that are targetted in this Petition including the telecommunications regulator, Communications Authority of Kenya; the copyright office, Kenya Copyright Board and the principal legal advisor to the Government, the Office of the Attorney General. A copy of the petition is available in .pdf here.
The major ISPs (in terms of the number of subscribers in Kenya) have all been enjoined in the suit including: Safaricom, Airtel, Jamii Telecom, Wananchi Group, Access Kenya, Liquid Telecom and Telkom Kenya.
The petitioners cite the infamous site: http://www.wapkid.com which allows users to illegally download sound recordings and audio-visual works online. The ISPs are accused of allowing its subscribers to use its internet networks to illegally acquire copyright works through sites such as wapkid. In this connection, it is alleged that the ISPs allow the transmission in digital form, these copyright protected music through their networks and into, and out of, the personal computers, phones and various gadgets that are used for online copyright piracy.
To illustrate its claims, the Petition submits into evidence the above screenshot of a Wapkid page linking to the location where one of the Petitioner’s members, Sauti Sol’s musical work known as “Sura Yako” is hosted. Through the “premium” or “free” options on the wapkid site, the user can download the unauthorized copy of Sauti Sol’s audiovisual work to his/her computer or phone or tablet for unlimited viewing or further distribution.
The matter came up for hearing before High Court Justice Lenaola earlier this month.
This blogger commends the petitioners for their efforts and will be closely following the developments in this case.
As many may already know, Safaricom, the largest mobile telecommunications company in Kenya is currently embroiled in a handful of intellectual property (read: copyright) law suits, with creators and innovators alike. See full list here. Recently, there have been some new developments in two of these cases, namely the M-Shwari and JB Maina cases.
To recap briefly, the M-shawri row arose late last year when Faulu Kenya claimed that it had pitched to Safaricom the idea of a mobile money service that allows users to save, borrow loans and earn interest using their mobile phones. On the other hand, the JB Maina case has been in court since 2010 when Safaricom was accused of copyright infringement in respect of musical works of JB Maina alleged to have been uploaded on Safaricom’s portals.
The Daily Nation now reports that the Court has declined to grant Faulu Kenya’s application for an interim injunction pending determination of its suit for breach of copyright and violation of trade secret. While this blogger is inclined to agree with this preliminary ruling by Justice Havelock, several concerns the learned judge’s reasoning on this case were raised.
Turning to the JB Maina case, a recent court ruling reported in full here has awarded limited Anton Piller orders to the plaintiff, JB Maina against Safaricom. The effect of these orders is that it allows JB Maina in the company of a copyright inspector to enter Safaricom’s premises, inspect its machines, take records, make copies of records for purposes of gathering and preserving evidence necessary to prove his claim. The court has also granted JB Maina a temporary injunction restraining Safaricom from dealing in JB Maina’s works, in addition to awarding JB Maina the costs of the motion to be paid by Safaricom.
This blogger will revisit this return of Anton Piller orders in Kenya’s IP litigation landscape in a subsequent post. However for the purposes of the JB Maina case, there are a couple of interesting questions that this blogger believes must be at the back of Safaricom’s mind. The first question is whether there is need to have such a complex web of relationships between the right holders (copyright owners); the music collecting societies (the copyright assignees); the content service providers and/or premium rate service providers (the middle men); and itself as a major user of copyright works. This first question requires Safaricom to think hard about eliminating the middle men altogether so as to deal directly either with the music collecting societies or the copyright owners themselves on an exclusive basis. The second question which flows from the first is whether the acts currently performed by Safaricom in respect to musical works and sound recordings ought to be licensed in the first place. This second question arises based on the various unlicensed rights currently being exploited by Safaricom, namely reproduction, communication to the public in addition to the performing right in the musical download.
At the very least, it is hoped that the final conclusion of both these Safaricom copyright suits may provide useful IP jurisprudence that will help settle some of the unanswered questions in Kenya.