The Kenya Copyright Board (KECOBO) will be forced to reassess its approach as the dispute over royalty collection continues. This follows a Copyright Tribunal decision criticizing KECOBO's award of a license to a single Collective Management Organisation (CMO).
In its judgment, the tribunal stated that applications from the Kenya Association of Music Producers (KAMP), Performing and Audio-Visual Rights Society of Kenya (PAVRISK), and Music Copyright Society of Kenya (MCSK) have been remitted for reconsideration and determination. This is based on the legal requirements under the Copyright Act and Regulations, with all enabling legal provisions to be completed within twenty-one days of the judgment.
KECOBO had argued that the decision to license PAVRISK was made following due process and per the Copyright Act, No. 12 of 2001, and the Copyright (Collective Management) Regulations 2020.
“However, KECOBO, who had invited companies with requisite competence to apply for registration as CMOs, failed to justify the issuance of a solitary license to PAVRISK and did not communicate the reasons for denying other CMOs license renewals,” read the ruling.
KAMP and MCSK, which had sought legal redress at the tribunal, felt that the regulator had failed to exercise its mandate fairly.
In its submissions, KAMP pointed out that by their admission under paragraph 4 of its Replying Affidavit, PAVRISK applied for registration of a new CMO under Application Form CMO 01. However, PAVRISK, by its admission under paragraph 8 of its Replying Affidavit, acknowledged being issued with a Certificate of Renewal of Registration on June 7, 2024.
“This is irregular for PAVRISK to apply for registration of a new CMO under Form CMO 01 only to be issued with a certificate for RENEWAL of registration of a CMO, which PAVRISK did not apply for. Applications for RENEWAL of a CMO license are made under FORM CMO 03 and NOT Form CMO 01. These requirements are provided for under Regulations 3(1) and 5(1) & (6),” read the submission.
MCSK also submitted that the issuance of a solitary CMO license to PAVRISK was unlawful and procedurally improper under the Copyright Act, specifically Section 46 (5), which stipulates that the Board shall not approve another collecting society in respect of the same class of rights and category of works if there exists another collecting society that has been licensed to the satisfaction of its members.
Regarding the communication of the decisions taken by KECOBO in declining KAMP’s application for a license, the tribunal stated that the regulator was bound to comply with section 4 of the Fair Administrative Action Act, 2015.
“This Honourable Tribunal notes that the above-mentioned section of the law was not complied with by KECOBO as analyzed above,” read the tribunal.
At the same time, the Copyright Tribunal noted the multiple suits at the High Court and advised that it was prudent to ensure parties are not abusing the legal process, to the chagrin of its members.
“In this regard, parties are directed to immediately draw this determination to the High Court’s attention, with the view of taking directions on the pending suits, and critically ensuring the rights holders are not prejudiced at all,” read the judgment.
The tribunal further directed KECOBO to issue provisional licenses to the three CMOs, pending the reconsideration and determination of the applications as lodged in the courts.
PAVRISK Chairman Antony Njagih welcomed the decision by the tribunal, saying the judgment brought much-needed clarity and affirmation in the regulatory framework governing CMOs.
“We have experienced enough challenges brought about by licensing multiple CMOs to serve the same artistes. There is, therefore, no need to continue with the confusion. Let for once KECOBO get it right by licensing only one CMO to represent all rights. In fact, what is the essence of duplication? Why have an artiste(s) represented by three or more CMOs considering each of the said CMO has running costs? It is better to save and avoid diseconomies of scale,” Njagih told Pulse.
Njagih argues that licensing one CMO does not mean all artistes will be forced to be members of that CMO.
“At PAVRISK we advocate for scientific distribution where every artiste is paid according to available airplay logs. (Both members and non-members benefit from this) therefore licensing one CMO does not in any way go against freedom of association as provided for in the Bill of Rights,” he said.
Governance Matters
At the same time, the Elizabeth Lenjo-led tribunal has raised concerns over the duplication of roles.
It said KECOBO’s Board Chairman and Directors have demonstrated involvement in administrative matters that are the responsibility of the Secretariat, led by its Executive Director whose role is the same as that of a Chief Executive Officer.
“In addition, KAMP has shared in its bundle of documents, including press statements drafted and published by KECOBO, one dated May 8, 2024, and another dated July 6, 2024, under the hand of KECOBO’s Chairman Joshua Kutuny, which is a task that is ordinarily performed by a State Corporation’s Director of Communications,” the verdict from the tribunal read.
According to the tribunal, the conduct raised questions on matters of governance, compliance, and/or interference thereof as envisioned by the State Corporations Act, CAP. 446, and the State Corporations Advisory Committee Guidelines and Circulars as well as the Mwongozo Guide and whether the Chairman at KECOBO is an executive chairman.
“The Tribunal also observes that the Copyright Act uses the word Board to describe both the State Corporation and its Board of Directors constituted under the Act.
“As a result, any mind perusing the Act may not know when the Act refers to the secretariat or the governance body. As such, this Tribunal opines that a review and perhaps a redraft of the Copyright Act of 2001 is long overdue,” read the observation.