MCSK royalties music kenya

…there has been a bickering and attendant judicial skirmish over who is the sole Collector in Nigeria, at the time of penning this piece, the Copyright Society of Nigeria (COSON) seems to be recognized as such. However, it is an anomaly in my opinion as there could be more bodies to administer Royalty collection. In all honesty, it is doubtful if a sole collecting society can effectively subdue the difficulties experienced in the administration of Royalty collection and the Publishing industry in Nigeria. —Mr. Akinyemi Ayinoluwa “@akinyemilaw”, Nigerian IP lawyer and blogger

It is reported that on 28th May 2013, employees of the Music Copyright Society of Nigeria (MCSN) will once again be in court facing charges of operating as a collecting society without the approval of the government regulator, Nigeria Copyright Commission (NCC). However in civil court, the latest judgment handed down by the Nigerian Federal High Court was against the Nigerian Copyright Commission (NCC), with respect to its decision and actions against MCSN. The Court on 18 March 2013 declared the actions of the NCC against MCSN as unlawful and unconstitutional and reaffirms an earlier judgment of the Court which declared Section 39 of the Nigerian Copyright Act upon which the NCC relied in taking its decisions on collective management of rights, unconstitutional, null and void.

A copy of the judgment made by the Court in this matter is available here.

Similarly in Kenya, the Music Copyright Society of Kenya (MCSK) and the government regulator, Kenya Copyright Board (KeCoBo) have not always seen eye-to-eye on certain aspects of collective management of copyright in Kenya. This apparent tension culminated in the deregistration of MCSK as a collecting society by KeCoBo in 2011. The decision by KeCoBo to renew MCSK’s license was made in mid-2012 which means that its license will be up for renewal again soon. Under section 46 of the Copyright Act of 2001, KeCoBo has the responsibility of licensing and supervising all collective management organisations (CMOs) in Kenya. KeCoBo has come up with its guidelines for licensing of CMOs and renewal of licenses for CMOs available here.

For the purposes of our present discussion, let us look closely at the above recent judgment in MCSN & 7 Ors vs. NCC & 4 Ors Suit No. FHC/L/CS/1163/12.

The court’s second order and declaration was that “the existence and activities of the 1st Applicant is guaranteed under section 40 and 44 of the Constitution and 1st Applicant’s operation is legal and constitutional”. Sections 40 and 44 of the Constitution of Nigeria deal with right to peaceful assembly and association and compulsory acquisition of property respectively. The same provisions can be found in Articles 36, 37 and 40 of the Constitution of Kenya, 2012.

The court’s third order and declaration elaborates on the second above and finds “that MCSN has the constitutional right under section 44 of the Constitution to own and enjoy the copyrights and/or proprietary rights as guaranteed by the Constitution based on several deeds of assignments, contracts, licenses, powers of attorney flowing from the original copyright owners to MCSN.”

In the case of Kenya, the Constitution declares, in Article 1 that all sovereign power resides in the people of Kenya and in Article 2, that the Constitution is the supreme law of the land. This same article domesticates Kenya’s obligations under the Berne Convention and the TRIPS Agreement. More importantly, the Constitution in Article 40(5) imposes a positive obligation on the State to “support, promote and protect the IP rights of the people of Kenya”. It is further clearly evident that KeCoBo’s decision to grant, renew or revoke a CMO license would fall within the definition of an administrative action under Article 47 of the Constitution. The CMO, as a juristic person, also enjoys several fundamental freedoms and rights enshrined in the Bill of Rights, including those referred to above relating to protection of right to property and freedom of association.
All in all, in the event of a conflict, the provisions of Constitution would supercede those in the Copyright Act 2001 and the Copyright Regulations 2005.

From a copyright perspective, MCSK is an assignee of various rights in the musical works falling within its repertoire vide deeds of assignment and therefore is recognised by law as an owner. MCSK is also affiliated to similar organizations throughout the world and, through a system of reciprocal agreements it authorizes all those organizations to administer the performing and reproduction rights under copyright in the musical works of Kenyan Composers, Authors and Publishers in their countries. Conversely, MCSK has acquired the same rights in the great store of musical works in the repertoires of all these foreign organizations for its own operational territory which consists of the Republic of Kenya.

The question then arises: what happens to MCSK’s assigned rights and foreign mandates where KeCoBo exercises its powers to deregister it as a CMO pursuant to section 46(9) of the Copyright Act?

In my humble opinion, the drafters of the Act did not fully consider the consequences of this eventuality and therefore have not adequately provided safeguards both for the users of the copyright works but more importantly for the owners of the works, including the CMOs. Indeed, many have questioned why the Act provides only for deregistration as a form of regulating CMOs without providing for other less punitive and drastic measures such as warnings or even fines.
It is therefore clear that the Act gives KeCoBo the mandate to license and supervise CMOs but fails provide the former with adequate mechanisms to carry out its mandate.

Ultimately, MCSK and other CMOs are companies limited by guarantee and incorporated under the Companies Act, Chapter 486 Laws of Kenya and carry out business guided by the Articles and Memoranda of Association. However, Section 46(1) of the Copyright Act clearly states that:

No person or association of persons shall commence or carry on the business of a copyright collecting society except under or in accordance with a certificate of registration granted under this section.

In light of the above discussion, the constitutionality of this section is indeed ripe for consideration with many inclined to argue that this section unfairly discriminates against associations acting as assignees on behalf of legitimate copyright owners.

It is the considered opinion of this blogger that perhaps an amendment to this section 46 would be in order. In addition to the certificate of registration, the Act may wish to provide for a certificate of exemption under permitting associations of persons to enforce in a collective manner their legitimate rights under section 26 of the Copyright Act.

Update: Media reports (here and here) now indicate that MCSN has moved to court seeking an order of revocation of the license of Copyright Society of Nigeria (COSON) by the NCC. This blogger has previously discussed this complex COSON-NCC-MCSN Triangle here.