High Court clarifies its Oder in case declaring Section 30A of the Copyright Act Unconstitutional

In a recent post here, we reported that the High Court sitting in Malindi in the case of Mercy Munee Kingoo & Lydia Nyiva Kingai v Safaricom Limited & Attorney General [2016] eKLR, pronounced itself on the constitutionality of section 30A of the Copyright Act, 2001 (the Act).

In the said case, the learned judge made a finding that it is not mandatory for artists and producers to be members of Collective Management Organisations (CMOs) in order to receive royalties from users. The court found that CMOs should only receive and pay royalties to its members and bemoaned the act of CMOs receiving royalties on behalf of artists who were not registered with them. Consequently, the learned judge held that section 30A of the Act was unconstitutional (i) to the extent that it limits the rights of artists to choose how their royalties are to be paid since it limits the petitioners’ freedom of association and (ii) the section was enacted without public participation.

In reaction to the above judgement, an application was filed on 3rd May 2017 before the same court seeking clarification of the orders issued. The application sought clarification to the extent that the orders only applied to the royalties payable to the petitioners, that the orders did not affect other right owners with works on the Skiza platform run by Safaricom, that only the petitioners and other artists who so desired shall have their royalties paid through their contracted Premium Rate Service Providers (PRSPs) and that the orders do not affect other revenue streams from which CMOs collect royalties. The application was based on the ground that the orders of the court were ambiguous and that though the applicant was willing to comply with the orders the ambiguity posed a challenge. The challenge being whether the applicant should proceed to pay royalties through CMOs for artists who so desired noting that the court had issued a permanent injunction restraining the applicant from remitting artists’ royalties from the Skiza Tunes Portal to CMOs. The applicant was apprehensive that if it paid royalties through the CMOs it would be cited for contempt.

In its Ruling delivered on 14th July 2017, the court dismissed arguments by the respondents that it was functus officio and stated that since the court was not being requested to vary or review its orders but only interpret its judgement, the court had jurisdiction to determine the application. That being said, the court clarified that it was not its intention to limit the payment of royalties through PRSPS. Therefore if an artist desires to be paid through a CMO that decision should be respected. In the same vein, if an artist wishes to be paid through a PRSP, that decision must be respected. In sum, the applicant is required to comply with the instructions of the artists.

It is noteworthy that the judgement of the court is the subject of appeal before the Court of Appeal and it thus remains to be seen whether the findings of the court will be upheld.

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Authors: Jane Mugambi

                Lorna Mbatia