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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From PRSK to PRISK: A Tale of Two Societies

It has been a landmark week for performers in Kenya, with the proposed enactment of amendments to Section 30 which deals with performers rights and essentially guarantees the continued existence of the collecting society representing performers.

The Performers Rights Society of Kenya abbreviated as “PRSK” has decided to change its abbreviation to “PRISK”. The inclusion of the “I” in the collecting society’s abbreviation takes immediate effect and was intentionally agreed upon so as to distinguish between the collecting society and the Public Relations Society of Kenya also abbreviated as PRSK.

Let’s compare the two PRSK’s, shall we:

– The PRSK for Performers is the youngest of Kenya’s collecting societies, having been established on 1 November 2009. PRSK represents performers in musical and dramatic works. It currently has about 70 members.
– The PRSK in Public Relations is the umbrella body for all PR Practitioners and Communications Specialists in Kenya. Its main purpose is to promote the PR practice in Kenya. It was established in 1971 and its membership is probably ten or twenty-fold that of the PRSK for performers. This PRSK is well known for its annual PRSK Gala Awards & Dinner dubbed “PRSK Awards for Excellence”.

With both PRSK societies operating within Kenya, it didn’t take long for PR practitioners to complain about the presence of PRSK for Performers and the latter’s potential to create confusion about the two societies.

Therefore Performers Society has now decided to voluntarily change its initials from PRSK to PRISK so as to differentiate itself from the Public Relations Society.

IPKenya believes that PRISK’s move to rebrand is wise and apt. PRISK is still a fairly new collective management organisation and now has the opportunity to grow given the recognition and extended mandate accorded to it in the recent amendments to the Copyright Act. The rebranding has effectively done away with any likelihood of confusion among PR Practitioners and Performers of musical and dramatic works seeking membership into their respective societies.

IPKenya wishes PRISK all the best in its future endeavours.