In a recent newspaper advert, Music Copyright Society of Kenya (MCSK) published a Court Order and a public notice (as pictured above). According to the Court Order dated 25th May 2017, Kenya Copyright Board (KECOBO) is restrained from interfering further with MCSK’s collection of royalties. In addition, KECOBO is restrained from issuing press statements and commenting on matters that are substantially and directly in issue in the court case. Most notably, the Order contains a notice to show cause why Contempt of Court proceedings should not be commenced against the entire Board of Directors of KECOBO.
It seems the allegation of Contempt of Court stems from a conservatory order granted on 5th April 2017 staying the decision of KECOBO dated 27th March 2017 approving the license of Music Publishers Association of Kenya (MPAKE) and revoking the license of MCSK pending the inter-parties hearing of this present case. It appears that MCSK may argue that this order was not complied with by KECOBO when it published a public notice on the tariffs recently approved and gazetted by the Attorney General. The relevant part of KECOBO’s public notice reads as follows:
“The new tariffs will be implemented by the three music CMOs licensed by KECOBO to operate as CMOs. They are: Performers Rights Society of Kenya (PRISK), Kenya Association of Music Producers (KAMP) and Music Publishers Association of Kenya (MPAKE). The Board of Directors of KECOBO in March rejected an application to renew the license of Music Copyright Society of Kenya (MCSK) to operate as a collecting society after it failed to fulfil conditions attached to its last license amongst other reason.”
In response, the present public notice by MCSK contains its opinions and statements on the position regarding the collective administration of copyright in musical works. In the notice, which freely mixes uppercase, lowercase, bold and underlined text, the central message appears to be that a collecting society derives its mandate directly from private rights owners with whom it has signed deeds of assignment and/or reciprocal agreements pursuant to sections 26, 28, 30, 33, 34, 35, 37, 38, 39 – 44 of the Copyright Act. Interestingly, sections 46, 47 and 48 of the Act which deal specifically with collective administration of copyright have been left out. Further, while the notice recognises the roles of the National Police Service and Office of the Director of Public Prosecutions, there is no mention of KECOBO and its parent ministry the Office of the Attorney General despite the fact that these are the two principal state organs responsible for the administration of copyright and related rights in Kenya.
From a user perspective, the public notice and caution by MCSK seems confusing. The notice clearly contradicts the Legal Notice made pursuant to section 46A(a) which requires users to pay license fees based on a set of approved tariffs. Further, according to the Legal Notice, such payment is required to be made upon receipt of a joint invoice, presumably from MPAKE, KAMP and PRiSK only. More importantly, a plain reading of section 46(1) of the Act makes it clear that it is an offence to carry on the business of a copyright collecting society except under on in accordance with a certificate of registration granted under section 46.