High Court Declares Section 30A of the Copyright Act Unconstitutional and CMO License Agreement Unlawful

safaricom-skiza-tunes-sokodirectory

This blogger has come across a recent judgment in the case of Mercy Munee Kingoo & Anor v. Safaricom Limited & Anor [unreported] Malindi High Court Constitutional Petition No. 5 of 2016 delivered by Mr. Justice S.J Chitembwe on 3rd November 2016. At the heart of this Petition was the claim that section 30A of the Copyright Act is unconstitutional. This Petition raised two important issues for determination: firstly, whether the petition is ‘res judicata’ in light of two earlier decided High Court Petitions (discussed previously here and here) in which section 30A was not found to be unconstitutional and secondly, whether the amendment of the Copyright Act and introduction of section 30A is unconstitutional for failure to observe the principles of public participation.

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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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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.

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