Artists and Premium Rate Service Providers scored a major victory after a judge ruled that a section of the Copyright Act is unconstitutional.
Justice Said Chitembwe (pictured), sitting in Malindi, ruled that independent artists and other producers cannot be compelled to join an association not of their choice.
He ruled that the two complainants in the case, Mercy King’oo and Lydia Nyiva, cannot be forced to receive their royalties through Collective Management Organisation yet they have no dealings with it.
“Section 30A of the Copyright Act is unconstitutional as it was enacted without public participation and it is being retrospectively applied. It also limits artists’ freedom not to be compelled to join an association of any kind as provided under Article 36 of the Constitution,” the judge said.
The two artists said they have composed several songs and contracted Liberty Africa Technologies, a PRSP, to digitise and manage the music content.
Since 2008, Safaricom has been operating a portal called Skiza Tunes, used to download digital music content by its subscribers. The music is uploaded in form of caller ring back tones through the portal.
Liberty would manage their exclusive composition, performance, production and related artistic rights and receive royalties on their behalf.
All was well until August 2015, when Safaricom signed an agreement with the Music Copyright Society of Kenya and CMOs, binding itself to channel artists’ royalties through the CMOs.
They maintained that they are not members of CMOs and do not intend to join any one of them. The caller ring back tones are in the category of performance rights, which the CMOs are not allowed to handle.
The judge saiad forcing the artists to become members of the CMOs is a violation of their rights under Article 36 of the Constitution.
“It is hereby declared that the August 2015 agreement between the first respondent [Safaricom] and the CMOs is irregular, unlawful and infringes on the petitioners’ constitutional rights,” Chitembwe said.
