This blogger has come across a twitter exchange involving one Jennifer Shamalla and the Kenya Copyright Board (KECOBO). Screen shots of the exchange have been posted below. Shamalla complains that Ozone Lounge and Bar in Valley Arcade within Nairobi plays “incredibly loud music” and that its patrons “engage in obnoxious behavior in total disregard of the environment as they scream and shout along with the music thus keeping the residents of the Valley Arcade area awake”. According to Shamalla, these actions by Ozone and its patrons “are a direct infringement on the constitutional right to a clean and healthy environment as provided for under Article 42 of the Constitution.” Therefore, Shamalla argues that KECOBO is vicariously liable for contravening the residents’ rights to a clean and healthy environment by licensing and supervising collective management organizations (CMOs) who issue licenses to Ozone. As a result, Shamalla has written to KECOBO (in a letter signed and dated August 11, 2014) demanding that KECOBO ensures that the CMOs withdraw any licenses issued to Ozone with immediate effect.

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By bringing this issue to light, this blogpost will comment on Shamalla’s argument and the issues arising from the above matter. This blogpost concludes that while Shamalla’s argument appears to be largely misplaced, the questions surrounding KECOBO’s statutory function to supervise CMOs cannot be ignored and perhaps ought to be addressed conclusively.

Many will not dispute World Health Organisation (WHO) reports and studies which have demonstrated that noise and excessive vibrations are a direct contribution to stress as a cause of sleep disturbance which is a direct contribution to fatigue, noise-induced hearing loss and high blood pressure, among other health effects.

Be it as it may, can KECOBO and/or the CMOs’ be held liable for the actions of Ozone and its patrons?

This blogger submits that Shamalla’s argument is premised on the assumption that by licensing Ozone, CMOs have authorised, sanctioned and/or condoned the alleged violations of environmental rights by Ozone and its patrons. Therefore, KECOBO (as the licensor and supervisor of CMOs) is liable for the violations allegedly caused by the issuance of these licenses by CMOs. This assumption couldn’t be further from the truth. In addition, this blogger opines that if Shamalla’s argument were to be adopted by KECOBO, it would result in the violation of one constitutional right (Article 40 on protection of the right to property) in order to uphold another right (Article 42 on Environment).

The Kenya Copyright Act No. 12 of 2001 establishes KECOBO, whose mandate is the overall administration of copyright and related rights in Kenya. Section 5(b) of the Act provides that KECOBO shall license and supervise the activities of collective management organisations as provided for under Part VI of the Act, which deals with collective administration of copyright. Section 46(1) of the Act makes it mandatory for any person or association of persons seeking to commence or carry on the business of a CMO to obtain a certificate of registration granted under the Act. Section 46(2) provides that the applications for CMO registration must be accompanied with the prescribed fees and that once the application is approved, KECOBO shall declare the applicant as a CMO for all relevant copyright owners or for such classes of relevant copyright owners.

Once KECOBO issues the license to CMOs to operate, KECOBO is required to supervise the activities of CMOs to ensure that the latter comply with the Act. One of the the most controversial activities by CMOs is the collection of royalty payments from members of the public who use copyright works for commercial purposes. A brilliant explanation of licensing by performing rights CMOs can be found in the recent video clip at the beginning of this post from our good friends at the Southern Africa Music Rights Organisation (SAMRO).

In the Kenyan context, the licensing activities of CMOs have been challenged on numerous occasions as infringing on several constitutional rights including equality and freedom from discrimination (Art. 27), human dignity (Art. 28), freedom and security of the person (Art. 29), privacy (Art. 31), among others. However these constitutional challenges relate almost entirely to the manner in which the licensing process is carried out, including collection of license fees. It is important to note that CMOs issue licenses on behalf of various rights holders to users so that they may exploit the exclusive rights provided under section 26(1) and that these licenses are consistent with section 33(1) of the Act. In this connection, the recent case of Nairobi Pacific Hotel Ltd v. Kenya Association of Music Producers & another (see our discussion here) clearly explains that the public performance license issued by MCSK is separate and distinct from the communication to the public license issued jointly by KAMP and PRiSK.

In light of the above, Shamalla’s argument fails to clearly explain how the licensing activities by the CMOs directly infringe the Valley Arcade residents’ rights to a clean and healthy environment. It follows then that the connection between the CMOs’ licenses to Ozone and the alleged noise pollution by Ozone is extremely remote, at best. Remoteness aside, Shamalla’s argument also fails to account for the loss of income in the form of royalties due to rights holders, if the licenses issued to Ozone were to be withdrawn by CMOs. In this regard, it is important to remember that the license fees collected by CMOs from users such as bars and restaurants form the bulk of royalties earned by rights holders. Article 40 protects the CMO members’ right to royalties from use of their work. However, this right is not absolute and can be limited in accordance with Article 24 of the Constitution. Enshrined within Article 40 is a positive obligation on the State (which includes KECOBO) to support, promote and protect the intellectual property rights of the people of Kenya (which includes CMOs and their Kenyan members). Therefore Shamalla’s argument does not demonstrate why the rights under Article 40 must be limited in favour of those under Article 42, if indeed there is a conflict between these two constitutionally-guaranteed rights.