Listening to the Skiza Tunes Millions: Section 30A of the Copyright Act Unconstitutional and Role of Collecting Societies
Image credit: YouTube
Skiza or “sikiza” is the Kiswahili word for listen or pay attention. Skiza Tunes is a caller ring back tone service run by local mobile network operator Safaricom. Since the platform provides Safaricom subscribers with access to caller ring back tunes this service falls within the scope of copyright licensing. The licensing of and collection of royalties from Skiza has been the subject of several court battles since the introduction of s30A of the Copyright Act through the Statute Law Miscellaneous Amendments Act of 2012. This section provides for the right to a single equitable remuneration for the use of sound recordings and audio-visual works to be licensed directly by two collective management organisations (CMOs) namely PRiSK (Performers Rights Society of Kenya) and KAMP (Kenya Association of Music Producers).
In August 2015, Safaricom signed an Agreement with the CMOs and started remitting royalties to artists through the CMOs, as opposed to paying out the royalties through the PRSPs (Premium Rate Service Providers) also referred to as CSPs (Content Service Providers). The issues mentioned above were decided in a recent case, Mercy Munee Kingoo & Lydia Nyiva Kingai v Safaricom Limited & Attorney General  Malindi High Court Constitutional Petition No. 5 of 2016. Chitembe J determined that the issue of the constitutionality of s30A of the Copyright Act was not res judicata (for the non-legalese speakers; res judicata refers to a matter that has been adjudicated by another competent court and may not be pursued further by the same parties.) The petition was ruled as not falling under res judicata as the petitioners were deemed not to be parties to the earlier decided Nairobi High Court Petition No. 317 of 2015 Xpedia Management Limited & 4 others v Attorney General & 5 others . The parties were arguing based on their positions as PRSPs, whereas the Malindi Petition involved artists as the petitioners. The artists’ challenges include the alleged infringement of some of their Constitutional rights including those granted under Article 36 (Freedom of Association), Article 10 (National values and principles of governance) and 118 of the Constitution (Public access and Participation).
S30A of the Copyright Act was declared unconstitutional by the Malindi High Court due to the lack of public participation prior to its enactment (especially the participation of the stakeholders that would be affected by the Act, in this case the artists, composers, producers and performers of the sound recordings and audio-visual works) and its enactment effecting royalties being funneled exclusively through CMOs.
The effect of this court judgment is that the artists will now receive their royalties directly from the PRSPs as opposed to the payments being remitted through the CMOs. Further, an injunction/interdict was issued by the court curtailing the exclusive payment of royalties to artists through the CMOs and the court nullified the Agreement between Safaricom and the CMOs where the royalties from Skiza Tunes were being remitted exclusively through the CMOs.
In light of this judgment, should Kenya consider adopting the South African approach to the protection of related rights? The Performers Protection Act of South Africa describes a performer as “an actor, singer, musician, dancer or other person who acts, sings, delivers, declaims, plays in or otherwise performs, literary or artistic works”. The Act offers protection to performances, either individual or collective that take place within South Africa; “broadcast without fixation” or “first fixed” in South Africa and also warrants protection to citizens of countries that are members of the World Intellectual Property Organization (WIPO) in as much as the same protection is reciprocated to South African citizens in the other WTO member countries.
The Act also restricts the use of the performances without the consent of the performer and provides exceptions for the use of the performance without having to obtain consent from the performer, as well as the offences and penalties for failing to adhere to the provisions in the Act. In addition to the above mentioned provisions, the Act provides the term of protection for performances, it is stated that the term begins from the date when the performance first took place or was affixed, and applies for a period of fifty (50) years calculated from “the end of the calendar year in which the performance took place or was incorporated in a phonogram”. There are a number of other provisions to cater for the protection of Performers are also included in the Act. It must be noted that there are some provisions in this Act that should be amended, such as the fines for certain offences.
In a subsequent post, this blogger shall consider whether Kenya should enact a Performers Protection Act to resolve the issue of performers rights and the payment of their royalties.