Music Copyright Society of Kenya has suffered a blow after the High Court dismissed a case in, which it accused the government of violating its rights by imposing a flat rate tariff on broadcasts of musical works.
The society had accused the Kenya Copyright Board (Kecobo) and the Ministry of ICT of unlawfully interfering with its operations in the guise of exercising oversight, and sought to have the board barred from regulating its activities when collecting and distributing royalties due to musicians.
Justice Anthony Mrima dismissed MCSK’s petition stating that the case was illusionary because there was no evidence of a single tariff approved by the Cabinet secretary or even a gazette notice showing any approved tariff.
“The upshot is, hence, that there is no evidence to prove the allegation of arbitrariness on the part of the respondents…The court is only called upon to decide on an imaginary issue,” the judge said.
MCSK had challenged section 46A of the Copyright Act arguing that it was illegal to allow the board to arbitrarily peg value of tariff to a percentage of business permit. The society said as an association of authors, composers, arrangers and publishers of musical works, it is the one charged with negotiating, collecting and distributing royalties on behalf of its members and other affiliates.
It also submitted that it was the body that deals with third parties in granting permission for the use of the copyright works or related rights.
However, it accused the board of infringement of copyright rights and asked the court to stop Kecobo from what it termed as unlawful acts by requiring it to obtain a license to administer and enforce its intellectual property rights.