Introduction

Recently, the state and situation surrounding the licensing and recognition of Collective Management Organisations (CMOs) in Kenya has been an interesting yet confusing journey to be on. A Collective Management Organisation, under section 2 of the Copyright Act of Kenya, is defined as an organisation approved and authorized by the Kenya Copyright Board (KECOBO) which has as its main object, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of the use of copyright works or related rights.

As such, section 46 of the Copyright Act of Kenya,¹ together with the Collective Management Regulations,² mandates that no individual or group can operate as a Collective Management Organisation (CMO) without a certificate of registration issued by KECOBO. Although multiple CMOs have been registered and operate concurrently in Kenya, this system has experienced its challenges.³ In an effort to streamline the collection of royalties and enhance operational efficiency, KECOBO recently opted to license only one CMO to manage all relevant copyright classes. However, this decision led to a multiplicity of cases. This blog serves as an explainer of the litigation surrounding the licensing of a single CMO.

Copyright Tribunal Case 1: Kenya Association of Music Producers (KAMP) v Kenya Copyright Board and Pavrisk & 3 others [2024] CPT 1861 (KLR)/ E001 OF 2024

On April 10 2024, the Kenya Copyright Board invited applications for companies to be licensed as Collective Management Organisations (CMOs). Subsequently, on June 6 2024, the Kenya Copyright Board (KECOBO) licensed the Performing and Audio Visual Rights Society (PAVRISK) as the exclusive CMO responsible for collecting and distributing royalties for musicians and audiovisual performers. The decision drew objections from other applicants, most notably the Music Copyright Society of Kenya (MCSK) and the Kenya Association of Music Producers (KAMP).

In response, KAMP filed an appeal before the Copyright Tribunal in the case of Kenya Association of Music Producers (KAMP) v Kenya Copyright Board and Pavrisk & 3 others [2024] CPT 1861 (KLR)/ E001 OF 2024,⁴ alleging that KECOBO’s decisions were neither transparent nor fair.⁵ KAMP asserted that KECOBO had invited applications for CMO licensing through a public notice dated 21 February 2024.⁶ On 24th April 2024, KAMP submitted its application to be licensed as a single (multi-rights) CMO, or in the alternative to be licensed specifically for managing and administering rights of sound and recording producers.⁷ KECOBO responded on 13th May 2024, requesting clarification on KAMP’s memorandum and articles of association, as well as its distribution of royalties, and gave them two days to respond.⁸ KAMP submitted the requested details in a letter dated 15 May 2024. Public participation was held on 23 May 2024, and on 6 June 2024, KECOBO announced that PAVRISK had been granted the exclusive license as the sole CMO for music and audiovisual performers.⁹ KAMP sought clarification on the rejection of its application in a letter dated 11 June 2024. KECOBO allegedly requested 21 days to respond but, according to KAMP, no clarification was ever received.¹⁰

The Copyright Tribunal noted that it was unable to fully understand the basis for KECOBO’s decision to license PAVRISK exclusively, citing the lack of supporting documentary evidence from the public participation process.¹¹ While affirming that KECOBO was acting within its legal mandate in issuing a sole license, the Tribunal nonetheless expressed concern regarding the apparent lack of transparency and fairness in the administrative communication surrounding the decision.¹²

In its judgment, the Tribunal directed KECOBO to reconsider the applications submitted by KAMP, PAVRISK, and MCSK within 21 days from the date of judgment.¹³ It further instructed KECOBO to issue provisional licenses to the three CMOs for the collection of royalties during the reconsideration period.¹⁴ While KECOBO legally holds the authority to issue a single license to one CMO, as per section 46 (2) of the Copyright Act, the Tribunal emphasised that such administrative decisions must be executed transparently and fairly.¹⁵ This ensures that the licensing process upholds the principles of equity and openness, aligning with regulatory expectations and fostering trust among stakeholders.

Music Copyright Society of Kenya (MCSK) V Kenya Copyright Board and 2 Others; Performing and Audio-Visual Rights Society of Kenya [2025] eKLR.

On 18 June 2024, the Music Copyright Society of Kenya (MCSK) filed a petition before the High Court seeking, among other reliefs, the suspension of the operating license issued to PAVRISK and conservatory orders allowing MCSK to continue collecting royalties. In response, KECOBO raised a preliminary objection, arguing that MCSK had failed to exhaust the statutory dispute resolution mechanism provided under the Copyright Act specifically, by not first appealing to the Copyright Tribunal.

On 3 March 2025, the Court upheld the objection, finding that the dispute fell squarely within the jurisdiction of the Copyright Tribunal.¹⁶ Citing binding precedent on the doctrine of exhaustion, the Court emphasized that parties must first utilize established statutory mechanisms before seeking judicial intervention. Accordingly, the High Court dismissed the application as premature and struck out the petition for lack of jurisdiction, directing that the matter be pursued before the Copyright Tribunal.¹⁷

Copyright Tribunal Case 2: Kenya Association Of Music Producers (KAMP) Vs Music Copyright Society of Kenya and Kenya Copyright Board and 1 Other

On 2 August 2024, KECOBO, after reviewing the applications within the 21-day timeframe, communicated its decision to the public to still award a license to PAVRISK as the sole CMO.¹⁸ On 23 July 2024, KAMP had filed an application seeking to have the High Court hold KECOBO, through its CEO, in contempt for failing to issue provisional licenses to KAMP, PAVRISK, and MCSK, as ordered by the Copyright Tribunal. However, the High Court dismissed the application, noting that although provisional licenses were not issued, KECOBO completed the reconsideration of applications and granted a new license to PAVRISK within the Tribunal’s 21-day deadline.¹⁹ The court concluded that the matter was moot and did not amount to contempt.²⁰

KAMP once again appealed this decision by KECOBO at the Copyright Tribunal.²¹ The Tribunal on 3rd September 2024 issued a judgment holding KECOBO’s decision to be illegal due to procedural irregularities and a lack of adherence to the principles of transparency and accountability mandated by law.²² KECOBO was directed to issue provisional licenses to KAMP, PAVRISK, and MCSK for six months and reassess the licensing process in accordance with legal requirements.²³

KECOBO challenged the Copyright Tribunal’s decision by filing an appeal at the High Court, which is pending. KECOBO sought orders of stay of the Copyright Tribunal’s judgment pending appeal.²⁴ On 31 January 2025, the High Court dismissed KECOBO’s application to review and reinstate interim stay orders that were previously denied on October 15, 2024.²⁵ KECOBO had sought to halt enforcement of the Copyright Tribunal judgment that directed the issuance of provisional licenses to KAMP, PAVRISK, and MCSK, arguing that the stay was necessary to preserve the appeal. The court held that there was no error on the face of the record or sufficient new evidence to justify a review. The court found no basis to exercise its discretion to reinstate the interim stay.

Current Status²⁶ of Licencing of CMOs in Kenya

The uncertainty surrounding the licensing of CMOs has been temporarily resolved with KECOBO issuing six-month provisional licenses to PAVRISK, MCSK, and KAMP to manage copyright and collect royalties, on 4 April 2025.²⁷ As part of the resolution, the Collective Management Organisations (CMOs) are required to overhaul their royalty collection methods.²⁸ This involves shifting from manual practices to a transparent and verifiable ICT system, ensuring all processes are clear and accountable.²⁹ Additionally, they must meticulously account for all royalties collected from 4th June 2024 to 4th April 2025.³⁰ Crucially, they are also tasked with developing a distribution plan that complies with the 70/30 rule,³¹ aimed at fair and equitable distribution among stakeholders. This approach is intended to streamline operations and safeguard the interests of music creators, fostering a more trustworthy and efficient royalty management system.

Conclusion

The prolonged litigation and regulatory uncertainty surrounding the licensing of Collective Management Organisations (CMOs) have somewhat eased, with KECOBO issuing six-month provisional licences to PAVRISK, KAMP, and MCSK. These CMOs are now authorized to collect and distribute royalties during this interim period. However, KECOBO’s appeal and the broader licensing disputes remain under legal review.

Despite the ongoing legal contestations, CMOs are still required to account for any royalties collected on behalf of their members. Musicians and rights holders can, therefore, expect royalty distributions in line with their respective memberships and entitlements.

Nevertheless, it is the musicians and creatives who often bear the brunt of these institutional wrangles. Stability and clarity in the licensing and operation of CMOs are critical. As emphasized by the Copyright Tribunal, the multiple suits involving CMO licensing in Kenya must not be allowed to undermine the interests of rights holders. It is essential that legal processes are not misused to the detriment of the very individuals the system is meant to protect.

The image was created by AI tool  DALL – E.