High Court Judgment on Caller Ringback Tones, Definition of Public Performance and Regulation of Collecting Societies

IMG-20151023-WA0023 edaily dot co dot ke

Previously we reported here that several members of Music Copyright Society of Kenya (MCSK) had filed a case in the Commercial Division of the High Court challenging a license pertaining to the caller ringback tones (CRBT) service known as “Skiza Tunes” owned by mobile network operator, Safaricom issued by the three music collective management organisations (CMOs) including MCSK.

While the outcome of this commercial suit is still pending, we have come across a recently delivered judgment in the case of Petition No. 350 of 2015 David Kasika & 4 Ors v. Music Copyright Society of Kenya in which several MCSK members alleged that the collection of royalties by MCSK under the CRBT license agreement in question violates their constitutional rights, that the making available of works for download on Safaricom’s CRBT service amounts to a private performance as such section 30A of the Copyright Act does not apply and thus the CMOs cannot collect royalties on behalf of its members as required under the section. Finally, the petition invited the court to weigh in on several damning allegations made regarding mismanagement by MCSK in its collection and distribution of members’ royalties.

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High Court Judgment on Constitutionality of Equitable Remuneration Right and Copyright Collective Management

skiza safaricom caller ringback tone service copyright license collective management society

 

Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).

Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.

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Uncertain Future for Reprographic Rights in Kenya as KOPIKEN Collecting Society Registration Not Renewed

KOPIKEN Launch Collective Management Reproduction Rights Society of Kenya

In a public notice by Kenya Copyright Board (KECOBO) published on February 4th 2016, we are informed that KECOBO at its Board Meeting of January 28th 2016 considered the application for renewal of registration as a collecting society made by the Reproduction Rights Society of Kenya (Kopiken). After consideration of Kopiken’s application, KECOBO decided not to renew Kopiken’s registration. This means that as of January 1st 2016, there is no registered collecting society for reprographic rights in Kenya. In this regard, KECOBO in its public notice states as follows: “KECOBO will be consulting stakeholders of KOPIKEN to determine its future sometimes (sic) in March 2016.”
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Government Invites Public Views on Liability of Online Intermediaries for Copyright Infringement

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In recent media reports here and here, Kenya Copyright Board (KECOBO) reveals that it has proposed draft legal provisions to deal with the liability of internet/online intermediaries. KECOBO Chief Legal Counsel (CLC) has been kind enough to share with this blogger a copy of the proposed draft legal provisions available here. KECOBO CLC has also indicated to this blogger that there are plans underway to hold a public forum in the coming months to discuss the draft provisions and receive comments from the public.

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Why Private Copying Law and Practice in Kenya is Unconstitutional

50 bob movies by wamathai dot com

Private copying can be defined as the act of making any copy for non-commercial purposes by a natural person for his/her own use. Kenya’s Copyright Act defines it as the making of a single copy for the personal and private use of the person making the copy. Although the right of reproduction under copyright law is exclusive, Kenya is among many jurisdictions worldwide that limit the application of the reproduction right to activities that can be qualified as private copying, the reasoning being that it is practically impossible to grant permission to large numbers of individuals, or to monitor the use consequently made of it. It follows that private copying is allowed under the condition that a fair compensation is paid to the authors and other rights holders for loss of revenues or harm caused to the rights holder whose work had been copied. Private copying levy (or the audio blank tape levy as it known in Kenya) is currently the only efficient mechanism which allows creators to be compensated for widespread copying of their works for private/domestic use. It therefore follows that the blank tape levy would be applicable to blank CDs, tapes, cassettes, DVDs, VCDs, USB Disks, MiniDiscs, Memory Cards, Mobile Phones among others. It is yet to be operationalised in Kenya despite being provided for under section 28(3),(4),(5) and (6) of the Copyright Act.

In December 2013, this blogger discussed here that one of the proposed amendments to the Statute Law (Miscellaneous Amendments) Bill, 2013 related to the provisions of audio blank tape levying provided under Section 28(5) of the Copyright Act. The effect of this proposed amendment was that the blank tape levy be collected by KECOBO and then distributed to the registered CMO representing the owners of sound recordings, currently known as the Kenya Association of Music Producers (KAMP). However, this blogger argues that this section 28 (in both its current and proposed form) is unconstitutional and ought to be fundamentally amended so as to address the economic rights of all rights holders.

The WIPO International Survey on Private Copying Law and Practice 2012 explains that where private copying remunerations are gathered by collective management organisations (CMOs), these societies are appointed by the government or by rights holders. According to the Survey, these CMOs must be representative of each variety of rights holders namely the authors, performing artists and producers. In some jurisdictions, a distinct CMO exists dealing solely with private copying levy and the board of such a CMO is comprised of the various rights holders’ representatives.

From all the 30 countries selected for the Survey, it is clear that there are two main categories of rights holders who benefit from the royalties collected for private copying: copyright holders and the related rights holders. The copyright holders appear to take the lion’s share of the collections with countries like Switzerland and Canada recording an authors’ share of 58%. All in all, the share for copyright holders appears never to be less than 30%.

Meanwhile, back in Kenya, the related rights CMO representing sound producers (KAMP) has recently published a public notice on it’s official website which reads in part:-

“The Kenya Association of Music Producers and Performers Rights Society of Kenya Stakeholders Meeting on Blank Media Levy concluded by setting an unopposed tariff of 6% of import price at the point of sale on the aforementioned equipment. KAMP and PRISK by virtue of Sections 28 (5) and 30 (8) will commence collections May of 2014.”

According to section 28(4) of the Act, the royalty payable for private copying can only be set in one of two ways: through agreement with stakeholders or by the (non-existent) competent authority. The question which therefore must be asked is which one of the two ways was used and what was the rationale behind the percentage figure of 6% purportedly agreed upon pursuant to the Act.

Assuming that the conditions of section 28(4) of the Act have been met, it would follow that the audio blank tape levy would only be applicable to KAMP and not PRiSK. This is because the section refers only to audio recording equipment and audio blank tape and not video. In addition, according to the WIPO Survey, the only jurisdiction with a tariff of 6% (of the import price) is Lithuania and this tariff covers both copyright and related rights holders, as illustrated in the table above.

However there is a fundamental question which remains unanswered, namely: is the current private copying levy provision under section 28 constitutional? The blogger argues that the answer must be no. In all the countries studied in the WIPO Survey above, copyright holders were allocated a substantial share of collections from the respective private copying levies. However, the Kenyan Act only refers to owners of sound recording. It is therefore possible to argue that section 28(3),(4),(5) and (6) are unconstitutional for two cardinal reasons, namely the discrimination of rights holders contrary to Article 27 of the Constitution and the deprivation of property contrary to Article 40 of the Constitution.

Intellectual Property and Public Events: Rights of Organisers, Participants and Third Parties

amateur photographer

I am hesitant to believe the Defendants’ argument on the issue of intellectual property rights to the event since the traditional common law view that has prevailed is that it is difficult to attach ‘any precise meaning to the phrase “property in a spectacle”. A spectacle in this case refers to an event. A “spectacle” cannot, therefore, be “owned” in any ordinary sense of that word. – Mabeya J. in AMCIL v Joseph Mathenge Mugo & ABMCIL HCCC 242 of 2013 at paragraph 29.

In the recent case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & Access Business Management Conferencing International Ltd. HCCC 242 of 2013 (hereafter the HR Symposium case), Justice Mabeya held that there are no intellectual property (IP) rights in a spectacle or event dubbed “Human Resource Symposium”. In holding that there is no IP in a spectacle, Justice Mabeya cited the Australian case of Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) (hereafter the Taylor case) where Latham CJ stated that: “The law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”

Read the rest of this article here.

To Photocopy or Not to Photocopy: The Role of the Reproduction Rights Society in Kenya

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One of the local newspapers recently published an article titled: “Can’t someone stop this photocopying madness?”, which raises the alarm over high levels of illegal photocopying especially in tertiary institutions of learning, namely our universities. The writer explains:

We were taught in classes that photocopying a book without the requisite permission of the copyright holder would be against the law, except for the very strict exemptions made on the copyright page of the book. Yet at student centres and other photocopying areas in institutions of higher learning, the exact opposite of this lesson goes on in the open.
Students photocopy entire books. Some shop owners photocopy books in advance and store them for sale. With such scenarios, what does the student learn? That the lessons on copyright law are a mere hot air?

Recently, a news feature was published by Al Jazeera titled: “Photocopying courts India campus controversy” which was premised on the on-going Indian High Court case of Oxford University Press and Others vs Rameshwari Photocopy Services and Delhi University. In this case, Cambridge University Press (CUP), Oxford University Press (OUP) and Taylor & Francis, the three of the world’s largest publishers have filed a case in court seeking to stop the reproductions of their work into study packs and course packs for students.

Authors and publishers all over the world contend that they fully support free access to information. But they have come to realise that their contended principle of free flow of information must not be confused with the idea of the flow of free information. After all, books, journals, newspapers etc. cost money to produce and the same must apply to the right to reproduce them, particularly through photocopying. The only way authors and publishers have been able to deal with this situation has been through collective administration of rights. It is widely agreed that no single author or publisher can effectively police the use or abuse of its bundle of rights throughout a whole national territory let alone the world at large. Thus, collective administration is a solution devised to overcome the many difficulties which individuals authors and other rights holders face in the enforcement of their rights separately by themselves in the face of fast-growing technologies of the modern world.

In the case of reproduction rights, one of the practical, instrumental and utlity organs in the process of this collective administration is the reprographic rights organisation (RRO). Simply put, the RRO aims to deal with both unauthorised reproduction of copyright works for internal use as well as for the market place. This reproduction is dealt with through licensing. The RRO is therefore an intermediary organisation. It brings the rights holders in contact with the users. It facilitates understanding between the owners and users of copyright rights. Most importantly, it negotiates with, and grants licenses to the users to use the works of authors on the one hand; and on the other, it ensures that authors and publishers are justly remunerated for their works and investments.

This blogger believes that in both the Indian and Kenya scenarios highlighted in the media reports above, the RRO is clearly missing from the picture yet the latter plays an important role in striking the right balance between the rights of the copyright holders on the one hand, and the interests of the users on the other hand. This blogger is indeed surprised that the reprographic society in India (IRRO) has not sought to be enjoined in the Delhi University court case yet it is an interested party given the issues for determination by the judges in that case.

KOPIKEN Launch Collective Management Reproduction Rights Society of Kenya

Meanwhile, here in Kenya, we have the Reproduction Rights Society of Kenya (KOPIKEN) which is fully functional but seems not to have attained the critical mass in terms of licensees for reproduction of printed works yet all indications are that the photocopying business is booming in most urban centres countrywide. Regarding the universities in Kenya, this blogger would be correct in stating that over 95% of them are not licensed by KOPIKEN yet these institutions are actively engaged in photocopying both for internal use and also as indirect commercial activity.

Therefore, the time has come for KOPIKEN to assert itself on behalf of all the local and foreign authors, publishers and other rightsholders in the print medium whom they duly represent. Borrowing from the situation in India, this bloggers contends that time has come for KOPIKEN to consider litigation as a means of ensuring compliance with the copyright law, deterring infringers and creating jurisprudence in this silent area of the law. In respect to the last point of jurisprudence, litigation by KOPIKEN against one of the local universities would also allow the courts to revisit the questions surrounding the exceptions and limitations (fair dealing) provisions contained in section 28 of the Copyright Act, particularly as they relate to educational institutions, libraries and archives.