It all started with this twitter hashtag. Actually, no – one might want to start from an earlier point in time. On February 20th 1984 a local newspaper published an article titled: “Musicians Complain of Royalties” where it was reported that musicians who were members of the then Musicians Performing Rights Society of Kenya (MPRSK) had complained that the license fees collected on their behalf by MPRSK under a pre-existing collaboration agreement with the Performers Rights Society (PRS) in London were not being paid out to MPRSK members. On March 1st 1984, Mr. S.N. Ndemange the then MCSK General Manager wrote a letter captioned “Royalty Payment” addressed to Mr. Habel Mwalumba Kifoto, one of the complaining musicians mentioned in the newspaper article, explaining that the functions of MPRSK had since been taken over by MCSK, a duly registered company limited by guarantee incorporated a year prior in 1983, that would serve as the national society of composers, authors and publishers of musical works. Shortly after, Kifoto joined MCSK as a member and later rose up the ranks to become the Chairman of the Board of Directors at MCSK, a seat he occupied until his untimely demise on July 31st 2011.
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.
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.
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.