In earlier posts here and here, we explained how Music Copyright Society of Kenya (MCSK) appears to be engaged in an all-out war against Kenya Copyright Board (KECOBO) and Music Publishers Association of Kenya (MPAKE). Readers will recall that early this year KECOBO declined to renew MCSK’s registration as a collecting society and instead decided to register MPAKE as a collecting society, presumably in the place of MCSK. Since then, MCSK has obtained several court orders (the latest coming from the High Court in Kakamega dated 5th April 2017) to enable it to continue its operations as a collecting society. In the latest turn of events, KECOBO has now obtained two court orders dated 31st May 2017 (pictured above) barring MCSK from collecting royalties from the public as well as publishing any information insinuating that it is duly licensed as a collecting society for the year 2017 pending hearing of the suit.
These orders of 31st May 2017 granted in favour of KECOBO ensure that if MCSK continues collecting royalty license fees from business owners then the latter could trigger contempt of court proceedings against its Board Directors and Chief Executive Officer. This blogger is aware that this dispute between MCSK and KECOBO is being widely watched both nationally and internationally with great interest. Most observers are keen to see how the court will address the substantive claims made by MCSK against KECOBO. It is clear that how the court addresses the merits of this matter will have implications for the collective management system as a whole including the operations of the other collecting societies and particularly the public at large made up of users of copyright works.
It is important to recall that the main suit is based on constitutional petition filed by MCSK alleging, in broad terms, that KECOBO’s decision to decline MCSK’s application for renewal of registration amounts to unfair administrative action that contravenes Articles 36, 40 and 47 of the Constitution. In its defence, KECOBO would seek to categorically rebut MCSK’s claims and assert that it followed due process in arriving at its decision regarding the application for renewal of registration of MCSK. Further KECOBO may seek to create legal precedent that the doctrine of legitimate expectation under administrative law does not apply to a collecting society whose application for renewal of registration is not granted despite any past or previous registrations.
Article 36 deals with freedom of association and broadly states that every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind. It is also states that a person shall not be compelled to join an association of any kind. In the context of the present suit, it appears that MCSK may be seeking to argue that this right has been denied to itself as a juristic person but also to the natural persons who are members of MCSK.
Article 40 deals with the protection of the right to property. As we know, property under the constitution is defined broadly to include intellectual property (IP) thus covering copyright and related rights. In the present case, MCSK may be contending that the State has arbitrarily deprived it of property and that the State has failed in its duty to support, promote and protect the IP rights of its people.
Finally, Article 47 which deals with fair administrative action has already been alluded to above. This article requires that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further, the article provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. Connected to this article are the so-called ‘rules of natural justice’ which state that no person should be a judge in his/her own cause and that all sides in a case must be given an opportunity to be heard.