The Constitutional Review Division Court dismissed a petition to prevent the Kenya Copyright Board (Kecobo) from regulating the operations of the Music Copyright Society of Kenya in the collection and distribution of royalties to artistes.
According to Justice Anthony Mrima, the Music Copyright Society of Kenya (MCSK) is a Collective Management Organization (CMO) under the Copyright Act, and thus subject to board control.
He refuted MCSK’s claims that it was not a CMO but rather an association of musical work authors, composers, arrangers, and publishers.
The Copyright Act, according to MCSK, does not apply to it because it deals with third parties in granting permission for the use of copyright works or related rights.
The organization sought a court order to prevent the Copyright Board from interfering with its operations.
It stated that it is in charge of negotiating, collecting, and disbursing royalties on behalf of its members and other affiliates.
However, Justice Mrima ruled that there was no evidence in court that the MCSK was the owner of copyright.
According to the evidence presented in court, MCSK acts on behalf of copyright holders, and as such, the judge declared it to be an agent and a CMO.
“This court notes that the MCSK has previously acknowledged and vehemently defended the position that it is a CMO and why CMOs are essential in the realm of copyright property rights,” the judge wrote.
On whether Section 46A of the Copyright Act is unconstitutional because it prohibits CMOs from imposing or collecting royalties based on tariffs that have not been approved by the Cabinet Secretary, the judge stated that MCSK provided no evidence to prove the allegation of arbitrariness.
“On an equal footing, the petitioner has failed to demonstrate any form of discrimination in imposing an alleged flat rate tariff on broadcasts of musical works.” “The court is only being asked to rule on a fictitious issue,” said the judge.
He did, however, state that, while Section 46A of the Copyright Act does not specify how a Cabinet secretary may develop a tariff, the Cabinet secretary is not free to exercise its powers arbitrarily.
“Just like caged animals, Cabinet secretaries must comply with constitutional and statutory demands while performing their duties.” As a result, it is not permissible for a Cabinet secretary to exercise any power bestowed upon him or her arbitrarily. As previously stated, such power must be exercised within the confines of the Constitution and the law,” Justice Mrima stated.
He also declined allegations that Kecobo Executive Director Edward Sigei was in contempt of court for allegedly disobeying orders dated February 9, 2021, prohibiting the board from interfering with the Music Copyright Authority’s administration, as well as the collection and distribution of royalties to artistes.
According to the judge, the order at issue had nothing to do with the MCSK and instead referred to an entity known as Music Copyright Authority.
