Safaricom seeks out-of-court deal in copyright dispute

Telecoms operator Safaricom is negotiating with a musician to settle a copyright infringement dispute out of court, Commercial Court judge Joseph Mutava was told on Tuesday.

“We are talking to amicably settle the dispute and we would require more time to reach a settlement,” Safaricom said through the firm of Ochieng’, Onyango, Kibet, and Ohaga Adocates.

The judge deferred the case to October 18 when the parties will record a settlement. Safaricom moved swiftly to calm the situation after Mr Mutava directed the Criminal Investigations Department and a copyright inspector to accompany musician John Boniface Maina to Safaricom’s headquarters in Nairobi and conduct an inventory of his songs.

Mr Maina, popularly known as JB Maina, sued the firm for allegedly using 10 of his songs as ringtones through its “Skiza” and “Surf 2 Win Promotion”.

The mobile operator has denied the allegations, saying that they signed a Content Provision Agreement with Interactive Media Services and Liberty Afrika Technologies, which are licensed by the Music Copyright Society of Kenya (MCSK).

Mr Mutava had earlier directed that the musician should be given access to Safaricom’s head office to make copies of all purchases and sales records of his songs.

Mr Maina, through lawyer David Miriti, claimed that since 2009 Safaricom has been charging customers Sh5 for every ringtone the subscriber downloads to their mobile phones and had received over Sh60 million on account of his songs without compensating him.

Mr Maina is demanding Sh5 million in damages in addition to any amounts due after accounting for the alleged illegal sale of his songs.

He has accused Safaricom of infringing on the copyright of the songs Muiritu wa Kabete, Tiga Kumute, Mundia Tawa, and Tuhua Twa Rose.

Third parties

Safaricom is further accused of engaging in piracy by reproducing, modifying, mutilating, and offering the songs for sale through downloading and subscribing after entering a code via mobile phone and the Internet.

Mr Maina argues that the company made animations of his music and benefited through his works without his consent. “There is an intention by Safaricom and third parties to defraud me of the revenue from my intellectual property,” says Mr Maina in a sworn affidavit.

Safaricom has brushed aside Mr Maina’s claims, saying that all payments related to the download of his music were made to Liberty Afrika as per the content provision agreement.

MCSK admits signing a content provision agreement with Liberty Afrika in 2009 assigning Safaricom rights, licenses, and sub-licences.