The High Court has quashed a decision by the Kenya Copyright Board (Kecobo) to license Music Publishers Association of Kenya (Mpake) to collect and distribute royalties on behalf of copyright holders.
A three-judge bench further ruled that Kecobo was at liberty to proceed with the process of calling for new applications for collecting the proceeds under section 46(2) of the Copyright Act.
Justices Ruth Sitati, David Majanja and Thripsisa Cherere, however, rejected an application to declare section 46 of the Copyright Act unconstitutional.
In the decision, the judges directed the Music Copyright Society of Kenya to account for all the licence fees and royalties collected from January 2017 to date within 30 days.
They ordered that the accounts be delivered to the board, which shall be at liberty to issue any further directions.
“We, therefore, find and hold that the process of issuing a licence by Kecobo on March 27, 2017 under section 46 of the Act violated section 5(1) of the Fair Administrative Action (FAA),” the court ruled.
The judges made the decision following the filing of numerous applications by artists and bar owners, who challenged the move by the board to license Mpake to the exclusion of MCSK.
Some of the applicants argued that MCSK was still collecting royalties, yet its license expired on December 2016.
The artists, including Laban Toto Juma and David Amunga, argued that licensing of Mpake to the exclusion of MCSK violated their freedom of association, right to property and to fair administrative action.
They said they will not enjoy their intellectual property rights because they are not members of Mpake.
They contended that the move takes away their rights, as copyright holders, to collect royalties for use of their works through their society and that Mpake only represents publishers, who would collect payment but not remit it to copyright owners who are not its members. Further, the move would force them to join Mpake in order to collect their royalties.
On their part, Kisumu Bar Owners Association were unhappy that MCSK was still collecting royalties yet its permit had not been renewed.
The judges said there was nothing in the Act that compels artists to forego their intellectual property rights assigned to MCSK.
They added that artists have a right to join and participate in the activities of an association of their choice.
“As we understand it, the petitioners have assigned their intellectual property rights to MCSK for management and collection of royalties. The petitioners, in our view, have not demonstrated any violation of Article 40 of the Constitution,” the Judges said.
According to the court, if there is a limitation on freedom of association, it should be reasonable and in line with the objects and purposes of the Constitution.
They said Kecobo should promulgate clear regulations regarding timelines for submissions and consideration of applications to avoid allegations of unfairness.
While defending itself, Kecobo, through its executive director Edward Sigei, said MSCK’s license was not renewed in 2017 as it failed to comply with the conditions of the previous permit.
He said their application was rejected because it failed to attach its audited accounts for the year ended June 30, 2016 as required by Act and the regulations.
Acting MCSK executive director Merit Simiyu said they have more than 12,000 members and was registered since the enactment of the Act.
Mpake, through its chairman Bernard Kioko, said it represents the rights of authors, composers and publishers and not just publishers, as alleged, and they were licenced to collect and distribute royalties for one year, from March 2017.