Nairobi | Kampala | Kigali | Addis Ababa
Home » Insights » Constitutionality of sections 46 and 46A to 46G of the Copyright Act and classification of Music Copyright Society of Kenya under the Copyright Act

Constitutionality of sections 46 and 46A to 46G of the Copyright Act and classification of Music Copyright Society of Kenya under the Copyright Act

Case Law: Music Copyright Society of Kenya v Kenya Copyright Board and 2 others (Constitutional Application E435 of 2020)

The brief facts were as follows.

The petitioner (Music Copyright Society of Kenya (MCSK)) contended the infringement of copyright rights and sought various declarations against the respondents. In particular, the petitioner contended that the Kenya Copyright Board (KECOBO), was unlawfully interfering with its operations in the guise of exercising oversight and control under the Copyright Act.  The petitioner was aggrieved by the alleged forceful and arbitrary approach of the 1st respondent in appropriating its rights and vesting them in third parties without any contractual or commercial relationship with the petitioner.

To that end, the petitioner challenged the constitutionality of sections 46 and 46A to 46G of the Copyright Act for allegedly violating the right to property as the provisions allegedly perpetrated the infringement of intellectual property rights by requiring a rights holder to seek a license before exercising/exploiting/administering its own rights of the Copyright Act; and for violating the right to equality and freedom from discrimination to the extent that it allegedly allowed the Cabinet Secretary, Ministry of ICT, Innovation and Youth Affairs to arbitrarily peg value of music/tariff to a percentage of business permit and by further allegedly perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical works.

Disposition of the Petition 

Whether Music Copyright Society of Kenya, is a Collective Management Organisation (CMO) within the meaning of the Copyright Act

On the issue of principles of interpretation to apply, the court held that there should be a holistic interpretation of statutes as well as the Constitution. Regarding the issue of the petitioner is a Collective Management Organisation (CMO), the court held that the petitioner is a CMO and is subject to lawful regulation. In arriving at this conclusion, the court delved into several cases and illustrations. The court looked at the definition of collective management organisation as enshrined in section 2 of the Copyright Act,  ‘Collective management organisation” means an organisation approved and authorized by the Board which has as its main object, or one of its main objects, the negotiating for the collection and distribution of royalties and the granting of licenses in respect of the use of copyright works or related rights;”

In simple terms, a CMO is a licenced organisation which acts on behalf of a copyright rights holders in negotiating, collecting and distributing royalties. A CMO in further dealing with the third parties grants permission for the use of the copyright works or related rights. A CMO, therefore, takes the form of an agent of a known principal. From the petitioner’s objectives, it is apparent that the petitioner is an association of authors, composers, arrangers and publishers of musical works. It is charged with inter alia the duty of negotiating, collecting and distributing royalties on behalf of its members and other affiliates. The petitioner further deals with third parties in granting permission for the use of the copyright works or related rights.

Whether section 46A of the Copyright Act violates article 27 of the Constitution to the extent of allowing the respondents to arbitrarily peg value of music/tariff to a percentage of business permit and by further perpetuating discrimination in violating the right to property by imposing a flat rate tariff on broadcasts of musical work

On the question of the constitutionality of sections 46, 46A and 46 AG of the Copyright Act with Articles 27 and 40 of the Constitution respectively. The court held that the said sections are not in contravention of Articles 40 and 27 of the Constitution of Kenya. Additionally, the court held that petitioner did not prove any form of discrimination or arbitrariness.

The court went further to state that for the petitioner to succeed in such a matter, there is need for proof of the arbitrariness and discrimination on the part of the Cabinet Secretary. The Petitioner has not even disclosed any single approved tariff by the Cabinet Secretary as a basis of the allegation. There is no Gazette Notice of any approved tariff on record. The upshot is, hence, that there is no evidence to prove the allegation of arbitrariness on the part of the respondents. The petitioner has, on an equal footing, failed to demonstrate any form of discrimination in imposing an alleged flat rate tariff on broadcasts of musical works. The court is only called upon to decide on an imaginary issue

Impact of the decision 

Music Copyright Society of Kenya shall continue operating as the Collective Management Organisation (CMO) and as such, it shall be under the regulations imposed by dint of the Copyright Act. Additionally, section 46A of the Copyright Act remains in force and in compliance with Article 27 and 40 of the Constitution of Kenya, 2010.

Web Hosting
Domain Registration
Website Design