Mombasa Court Clarifies Collective Administration of Copyright and Related Rights in Kenya
In a recently reported judgment in the case of Michael Branham Katana t/a Harsutak Bar & 4 others v Kenya Association of Music Producers (KAMP) & 3 others  eKLR, a claim was made that Kenya Copyright Board (KECOBO) acted unreasonably by licensing two collective management organisations (CMOs) namely, KAMP and Performers Rights Society of Kenya (PRiSK) to collect royalties. The Petitioners claim that by the act of collecting and enforcing royalty collection, the CMOs violated their constitutional rights including the right to equality, and property and that by virtue of the act of licensing the CMOs to operate, KECOBO is complicit in the alleged violation of the Petitioners’ constitutional rights.
The Petition was filed by the Petitioners after they were arrested and arraigned in court for the purported offence of failure to procure licenses from the CMOs as required under Section 46 of the Copyright Act. The Petitioners’ case was that the collection of royalties by the CMOs was illegal. The Petitioners also argued that the licensing by KECOBO of the CMOs was unreasonable, illegal and a duplication of the work of Music Copyright Society of Kenya (MCSK).
With regard to the issue of whether the licensing of KAMP and PRISK by KECOBO was unreasonable, illegal, irregular and a duplication of the work of MCSK, the court held that a plain interpretation of section 46 of the Act was that KECOBO may licence one CMO for each class of rights. In addition, the court stated that there is no doubt that there may exist different classes of rights in the same work. For instance, in the case of music, the court states that the concerned right holders in music may be the composers and publishers, the producer of the sound recording and the performer. As a result, each of these right holders is entitled to receive his/her royalty interests, and for this purpose they may register with different CMOs to collect their respective class of rights. In Kenya, each of these right holders has a collecting society registered in accordance with the Copyright Act, namely PRISK for performers, MCSK for musicians and/or composers, and KAMP for producers.
On the question of the requirements of registration of CMOs under Section 46(4), the court held that there was no suggestion that either KAMP, PRiSK or KECOBO did not meet the requirements of registration.
Further the court termed as misconceived the suggestion that KAMP and PRiSK do not have the legal mandate to demand licence from the Petitioners because there was no assignment of rights from the owners of copyright. The court stated that a perusal of the KAMP Membership Application Form and PRISK Sound Declaration Form shows that the forms are in fact contracts that have the effect of assigning the rights of any number to KAMP and PRISK. Therefore, according to the court, it is reasonable and safe to infer assignment by virtue of membership.
With regard to the Petitioners’ claim that KECOBO acted unfairly in taking administrative decision of registering and renewing the licence of KAMP and PRiSK allegedly without consultation, the court held that this was “rather strange claim”. According to the court, the Petitioners organization was registered on 29th November 2013 and found the CMOs already registered and operation at that date. Therefore, according to the court, the Petitioners as a Welfare Group cannot therefore claim to demand consultation over a process that predates its existence. Since the Welfare Group has not initiated any process to trigger an administrative process to claim breach of the Constitution, there is consequently no basis for claiming lack of consultation in participation by the Petitioners.