Safaricom, Airtel ordered to release withheld Skiza Tune cash

"The interim orders are vacated. The first and second Interested Parties (Safaricom and Airtel) shall release all the funds held by them since the date of the grant of the interim orders to all the affected artists to date forthwith," said Justice John Chigiti.

The petitioners, Justus Ngemu and Saul Esikuri, were pushing for enforcement of Section 30C of the Copyright Act amended in 2022, which says artistes or copyright holders should get the lion share of not less than 52 per cent of the ring back revenues, telecommunication operators 39.5 percent and premium rate service providers a share 8.5 percent.

They also sought orders for implementation of a section of the Act that says telecommunication operators should remit the net revenue directly to the artiste or owner of the copyright without going through the Premium Rate Service Providers (PRSP).

The PRSP entities act as intermediaries between Safaricom or Airtel and content creators for Skiza and Hello Tunes. They facilitate the distribution of royalties to artists from Skiza and Hello tune downloads.

However, Justice Chigiti dismissed the application after finding that the premium rate service providers were at liberty to enter into individual contracts with artistes. He ordered that the revenue that was payable to the artists would, in the intervening period, continue being paid in the form that subsisted before the filing of the suit.

"To this Court, Sub-section 30(2) of the Act, in its plain reading, means that the premium rate service providers and artistes or owners of the Copyrights are at liberty to enter into individual contracts to regulate their business. By so providing, it is clear that the legislator knew of the existence of such arrangements in the industry and the Act does not outlaw the existing contractual relationships," said the judge.

Read: Musicians to get half of Skiza billions as Bill sails to last reading

He noted that the Act was progressive and forward-looking in that it actually creates room and provides for the entry of future contracts between premium rate service providers and artistes or owners of the copyright, subject to compliance with the amended statute.

The petitioners were aggrieved that, despite the amendment of the law, the Copyright Board continued to allow the telecommunication firms to pay ringback tune net revenue share to PRSPs instead of remitting the same to the artistes directly.

Justice Chigiti noted that the petitioners failed to make the PRSP parties to the suit.

"The court has curiously noted that the applicant did not make the premium rate service providers that the applicants are in a contractual relationship with parties to this suit," said the judge.

He added that a close reading of the legal section, which the artistes were unhappy with, the court did not find anything problematic with the same, save for the lack of a data platform for the artistes.

The court also found that allowing the application as sought by the two artistes, which was not a class action, would affect many existing contracts between other artists and premium rate service providers, who would be condemned unheard. The judge criticised the petitioners for their contradictory arguments.

"This court notes that the applicants have been beneficiaries of revenue through an arrangement through the premium rate service providers under Subsection 30(2), albeit without regulations. The Applicants are clearly blowing hot and cold air at the same time," said the judge.

He further stated that Safaricom and Airtel, who were interested parties to the petition, demonstrated to the court's satisfaction that their livelihood and contractual obligations would be adversely affected if the orders were granted as prayed.

"The court has found it necessary to develop a way forward around the issue of the need for an artistes’ database given that all the parties identify with the importance of such," said Justice Chigiti.

The court also directed the Copyright Board to develop and maintain an effective data bank of all the artistes and their works within six months.

Justice Chigiti explained that this should be done, taking into account the stakeholder input.

The development of the data is a requirement under Section 5(f) and (g) of the Act: It says the Board should maintain an effective data bank on authors and their works, and administer and enforce all matters of copyright and related rights in Kenya.

"For effective implementation of the subject provisions, the first respondent (Copyright Board) must undertake role f & g indicated i.e. maintain an effective data bank on authors and their works & administer and enforce all matters of copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act," said the judge.

He observed that if Safaricom were to make payments to the artists directly, then the Board would have to come up with an effective database.

[email protected]