Win for copyright agency in fight with MCSK
Kecobo Executive Director Edward Sigei.
The Kenya Copyright Board (Kecobo) has received a major win in court after a judge dismissed a petition to block it from regulating operations of the Music Copyright Society of Kenya in collection and distribution of royalties to artistes.
Justice Anthony Mrima said the Music Copyright Society of Kenya (MCSK) is a Collective Management Organisation (CMO) within the meaning of the Copyright Act, hence it is subject to control by the board.
He dismissed claims by MCSK that it was not a CMO but an association of authors, composers, arrangers and publishers of musical works.
Urging court to stop the board from interfering in its operations, MCSK claimed that as an organisation dealing with third parties in granting permission for the use of the copyright works or related rights, the provisions of the Copyright Act do not apply to it.
The organisation wanted court to stop the Copyright Board from interfering with its activities.
It explained that it is charged with the duty of negotiating, collecting and distributing royalties on behalf of its members and other affiliates.
But Justice Mrima ruled that there was no evidence in court that the MCSK was a copyright rights holder.
What was on record in court indicated that MCSK acts on behalf of copyright rights holders and as such, the judge said it is an agent and a CMO.
Copyright property rights
“This court notes that the MCSK has in previous proceedings acceded to and vehemently defended the position that it is a CMO and why CMOs are essential in the realm of copyright property rights,” said the judge.
On whether Section 46A of the Copyright Act is unconstitutional for stopping CMOs from imposing or collecting royalties based on a tariff that has not been approved by the Cabinet Secretary, the judge said there was no evidence by MCSK to prove the allegation of arbitrariness.
“The petitioner has, on an equal footing, failed to demonstrate any form of discrimination in imposing an alleged flat rate tariff on broadcasts of musical works. The court is only called upon to decide on an imaginary issue,” said the judge.
He, however, stated that whereas Section 46A of the Copyright Act does not provide for the manner in which a Cabinet secretary may come up with a tariff, the Cabinet secretary is not at liberty to arbitrarily exercise its powers.
“Just like caged animals, Cabinet secretaries must comply with the constitutional and statutory demands while discharging their duties. It is, therefore, not open for a Cabinet secretary to exercise any power conferred upon whimsically. As said, such power must be within the four corners of the Constitution and the law,” stated Justice Mrima.
He further dismissed allegations that Kecobo Executive Director Edward Sigei was in contempt of court for allegedly disobeying orders dated February 9, 2021, stopping the board from interfering with the Music Copyright Authority’s administration and collection and distribution of royalties to artistes.
The judge said the order in issue did not relate the MCSK but referred to an entity known as Music Copyright Authority.
