Endless wrangles in Kenya’s collective management system have made us all experts in copyright law. The thorny question of how and to what extent key players in the collective administration of copyright and related rights must comply with the Constitution remains a hotly debated topic. This brings us to a recent judgment by the High Court in the case of Laban Toto Juma & 4 Others v. Kenya Copyright Board & 2 Others Consolidated Kakamega Petition No. 3B of 2017 delivered on 13 July 2018. A copy of this High Court judgment is available here. Not surprisingly, both sides in this see-saw legal battle are claiming victory following the court’s final verdict. So, this blogpost will attempt to examine the key issues tackled by the court in its judgment as well as some of the questions that have been left unanswered.
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.
“…there has been a bickering and attendant judicial skirmish over who is the sole Collector in Nigeria, at the time of penning this piece, the Copyright Society of Nigeria (COSON) seems to be recognized as such. However, it is an anomaly in my opinion as there could be more bodies to administer Royalty collection. In all honesty, it is doubtful if a sole collecting society can effectively subdue the difficulties experienced in the administration of Royalty collection and the Publishing industry in Nigeria.” —Mr. Akinyemi Ayinoluwa “@akinyemilaw”, Nigerian IP lawyer and blogger
It is reported that on 28th May 2013, employees of the Music Copyright Society of Nigeria (MCSN) will once again be in court facing charges of operating as a collecting society without the approval of the government regulator, Nigeria Copyright Commission (NCC). However in civil court, the latest judgment handed down by the Nigerian Federal High Court was against the Nigerian Copyright Commission (NCC), with respect to its decision and actions against MCSN. The Court on 18 March 2013 declared the actions of the NCC against MCSN as unlawful and unconstitutional and reaffirms an earlier judgment of the Court which declared Section 39 of the Nigerian Copyright Act upon which the NCC relied in taking its decisions on collective management of rights, unconstitutional, null and void.
A copy of the judgment made by the Court in this matter is available here.
Similarly in Kenya, the Music Copyright Society of Kenya (MCSK) and the government regulator, Kenya Copyright Board (KeCoBo) have not always seen eye-to-eye on certain aspects of collective management of copyright in Kenya. This apparent tension culminated in the deregistration of MCSK as a collecting society by KeCoBo in 2011. The decision by KeCoBo to renew MCSK’s license was made in mid-2012 which means that its license will be up for renewal again soon. Under section 46 of the Copyright Act of 2001, KeCoBo has the responsibility of licensing and supervising all collective management organisations (CMOs) in Kenya. KeCoBo has come up with its guidelines for licensing of CMOs and renewal of licenses for CMOs available here.
For the purposes of our present discussion, let us look closely at the above recent judgment in MCSN & 7 Ors vs. NCC & 4 Ors Suit No. FHC/L/CS/1163/12.
Read the rest of this article on the CIPIT Law Blog here.