A court in Nairobi has disallowed Music Copyright Society of Kenya (MCSK) from collectin royalties on behalf of its members and issue copyright licenses.
Commercial and Tax Division Court Judge Lady Justice Josephine Mong’are on Monday struck out MCSK’s petition and dismissed their application saying the court lacked jurisdiction to hear the matter.
In June last year, Justice Mongare issued conservatory orders to MCSK, a Collective Management Organisation (CMO), in the application filed in court under certificate of urgency allowing them to collect royalties on behalf of its members.
While delivering her ruling, she observed that the CMO had prematurely moved to court without exhausting the dispute resolution mechanism before the Copyright Tribunal.
“MCSK prematurely filed the petition, violating the doctrine of dispute exhaustion as the Copyright Act, 2001 provides an elaborate dispute resolution mechanism prior to any appeal at the High Court,” she observed.
The ruling by Justice Mongare nullifies orders she issued on June 18, 2024, which had temporarily allowed MCSK to collect and license copyright users. This technically deprives the CMO the powers to collect royalties or issue licenses to users of music.
In the petition, MCSK had also sought orders restraining the Performing and Audio-Visual Rights Society of Kenya (PAVRISK), being the sole licensed CMO from using its license issued to it by the Kenya Copyright Board (Kecobo) to collect revenues for MCSK members.
In the suit filed by Wachira and Mumbi Advocates on behalf of MCSK, Kecobo, its board chairman and its chief executive officer were sued as first, second and third respondents respectively while PAVRISK has been named as an interested party.
In its bid to streamline the creative industry, Kecobo issued an all-inclusive license to PAVRISK as a single CMO mandated to collect and distribute royalties to musicians and audio-visual rights holders in a competitive process held in June last year.
Five organisations, among them MCSK, PAVRISK, Kenya Association of Music Producers (KAMP), Film Makers Rights Achievers of Kenya (FRAK), and Collective Management Services had submitted their applications to Kecobo for consideration in the registration and licensing of a single CMO in the country.
“The honourable court be pleased to issue conservatory orders restraining the interested party from collecting and/or distributing any monies and royalties to for and /or on behalf of the petitioner and its affiliate members on the strength of the operating license issued to it by Kenya Copyright Board, pending the hearing and determination of the suit,” MCSK avers in the motion dated June 18, 2024.
The petitioner had also sought orders to be allowed to continuing collecting monies and distributing royalties to its affiliate members on the strength of the operating license previously issued to it by Kecobo, which expired in June 2024, pending the hearing and determination of the matter.
On its part, Kecobo submitted that the petitioner had not exhausted the dispute resolution mechanism provided for under the Copyright Act 2001 by moving to court to seek intervention thus by-passing the Copyright Tribunal.
“The petitioner violated the doctrine of exhaustion, which we implore this court to concur with, and there being no reasons at all advance as to whether the statutory provided mechanism is insufficient,” said Kecobo.
It further submitted that the Copyright Act 2001 provides a clear procedure that ought to have been pursued by MCSK in challenging its (Kecobo) decision to grant an all-inclusive operating license to the interested party—PAVRISK.
It avers that the right procedure ought to have been taken was to lodge an appeal at the Copyright Tribunal, which MCSK failed to do, thus divesting the court with any jurisdiction.
Kecobo avers that after MCSK’s application for an-inclusive license was denied, MCSK was obliged to challenge the decision of the board at the Copyright Tribunal in the first instance.
Kecobo has defended its decision to issue an all-inclusive operating license to PAVRISK as a sole multi-rights CMO, saying the organisation satisfied the board and met all the requirements as stipulated by the regulator during the competitive recruitment exercise.
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