IP Kenya has learned that John Katana, renowned musician and founder member of the legendary Kenyan band, “Them Mushrooms”, has obtained judgment in the Chief Magistrates’ Court against TV & Radio giant, Royal Media Services (RMS), in a case relating to infringement of copyright. The Court awarded Katana over KES 2,400,000 in damages for infringement of copyright with respect to the latter’s musical work titled “Kazi ni Kazi”, featured above.
The facts of this case are briefly as follows: sometime in 2005, Katana became aware that his song was used as a signature tune for a radio programme aired by Radio Citizen which is among the twelve radio stations owned by RMS. The radio programme dubbed “Chapa Kazi” aired virtually every day and at least five days in a week. Katana alleged that RMS had not obtained the license or authority from him or the members of his band to reproduce or use the said song in connection with the radio show. As a result, Katana contended that the song has now become unduly associated with RMS to the extent that no other broadcasting station wants to have anything to do with the hit song as most potential licensees believe that the song and the band have a relationship with RMS. Aggrieved by RMS’s actions, Katana testified that he approached RMS to complain and seek compensation but he was ignored. Thereafter, Katana filed a complaint with the Kenya Copyright Board (KECOBO), who in turn wrote to RMS on the matter but RMS allegedly declined to take any action. As a result, Katana claims that he was forced to take legal action to stop the infringement of his work and seek compensation.
Through his lawyer, Katana conservatively quantified the damages for the copyright infringement at a total of KES 5,000,000, which included loss of royalties which were calculated at a minimum of KES 300,000 per year assuming RMS had approached him for a license.
In response, RMS sought to rely on the “fair dealing” provision of the Copyright Act. RMS submitted that the radio show in question was educative in nature and was never used for profit-making. Other defences raised by RMS included that it had popularised Katana’s song through its use of his song on its radio station therefore Katana was a major beneficiary of RMS’s use of the song.
The judgment in the above case, John Katana Harrison v. Royal Media Services Ltd 6161 of 2009, sets an important precedent in the area of copyright law in Kenya. It is trite law that the right to authorize the inclusion of any musical works in an audio-visual work or a broadcast, which is known as a synchronization right, can only be authorised/licensed by the respective foreign or local copyright owners.
In reality, this blogger has observed with alot of concern that there are a number of production studios, broadcasters, marketing and advertising companies in Kenya that include musical works in their productions. The most common examples are the Wedding Shows that are aired on local television networks. These shows include a whole repertoire of well-known local and foreign musical works from various genres. Following the judgment in the Katana case, this blogger would advise all parties concerned in the synchronisation of musical works to ensure that express consent has been duly obtained and where necessary, the desired license agreements are in place.