IP Case Law library

Facts

Under Section 5 of the Copyright Act, the Kenya Copyright Board is vested with the authority to license and regulate the activities of Collective Management Organisations (CMOs). This authority includes the responsibility to oversee the gazettement of audio-visual tariffs through the Cabinet Secretary responsible for copyright issues. The respondents in this case are CMOs, tasked with the crucial role of collecting and disbursing royalties to authors based on gazetted tariffs.

On 31st December 2018, the gazetted tariffs applicable to the use of copyrighted audio-visual content expired. Despite the expiration, it has been averred that the respondents continued to demand, levy, and receive royalties under a document titled ‘Proposed New Royalties.’ This document, crucially, was not officially gazetted under Section 46 of the Copyright Act, raising questions about its legitimacy and the legality of the royalties being collected under its provisions.

In response to these actions, the applicants sought an order of certiorari from the court to quash the respondents' continued collection and levying of royalties, which they contend is unlawful due to the lack of a gazetted tariff as required by law.

The respondents, however, raised several preliminary objections. They argue that the High Court lacks jurisdiction over this matter and that the suit is irregular, misplaced, and constitutes an abuse of the court process. Further, they contended that the dispute should be adjudicated by a competent authority designated under the Copyright Act, rather than through judicial proceedings. These objections challenge the procedural and jurisdictional propriety of the applicants’ legal action, suggesting that the issues in question ought to be resolved through administrative rather than judicial mechanisms.

Issue

Whether the High Court has jurisdiction?

Rule

Whether the High Court has jurisdiction?

Section 48 of the Copyright Act - Establishes a competent authority to determine disputes with regard to
- Challenging decisions made by the Copyright Board
- Refusal to grant licence
- Imposition of unreasonable terms or conditions of grant of licence

Article 159 (2) © - In exercising judicial authority Courts and tribunals shall be guided by the principle that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted.

Dickson Mukwelukeine v Attorney General and 4 others - The Court is obligated to promote these modes of alternative dispute resolution to insist that statutory processes be followed particularly where those processes are for the specific purpose of realising, promoting and protecting certain rights.

Section 9 (2) (3) and (4) of the Fair Administrative Act
(2) High Court/ Subordinate court shall not review an administrative action or decision unless internal mechanisms for appeal/ review and all remedies have been exhausted
(3) Remedies should be exhausted before approaching High Court/Subordinate Court
(4) Exemptions may be grants for exhaustion to achieve justice

Republic v National Environment Management Authority - where there is a statutory appeal procedure an order for judicial review will only be granted in exceptional circumstances.

Republic v Public Procurement Administrative Review Board & Others Exp Olive Telecommunications PVT Limited - where statute donates powers to an authority, the authority ought to ensure that the powers it exercises are within the 4 corners of the statute under which it purports to exercise its authority.

Analysis

The Court reasoned that though the High Court’s jurisdiction may be limited and allow for quasi judicial bodies to determine certain matters, those bodies cannot extend their mandate beyond the letter of the law. Section 48 of the Copyright Act that establishes the competent authority does not allow for the competent authority to challenge the imposition tariff without gazettement. Section 48 cannot be interpreted or expanded to include a dispute relating to unlawful imposition of tariffs.

Jurisdiction and Statutory Interpretation
The court’s interpretation hinged on the precise mandates outlined in Section 48 of the Copyright Act, which establishes a competent authority to handle disputes related to licensing decisions or the imposition of conditions on licences. However, this provision does not explicitly address issues arising from non-gazetted tariffs, a gap that arguably left room for judicial review. The court's decision to assert jurisdiction by interpreting that the absence of explicit mention does not exclude its role in adjudicating disputes related to the collection of royalties under non-gazetted tariffs appears sound. This is particularly relevant as the imposition of such tariffs directly impacts the rights and obligations of the parties involved and could be seen as an overreach by the CMOs, thus necessitating judicial intervention.

Role of Alternative Dispute Resolution (ADR):
While Article 159(2)(c) of the Constitution encourages the use of ADR, the court appropriately recognised that not all disputes might be amenable to ADR, especially those involving fundamental questions of legality such as the unlawful imposition of tariffs. This aligns with the ruling in Dickson Mukwelukeine v Attorney General, which supports the use of ADR while also acknowledging the necessity of judicial oversight in certain contexts.

Exhaustion of Remedies:
Section 9 of the Fair Administrative Act mandates the exhaustion of all available remedies before approaching the High Court. The court's approach, suggesting that recourse to judicial review remains viable when administrative remedies may not adequately address the legal questions or where rights might be irreparably harmed, is consistent with established jurisprudence, such as in Republic v National Environment Management Authority. This interpretation ensures that administrative authorities do not overstep or operate outside legal boundaries without oversight.

The High Court’s decision to take jurisdiction in this case is both legally justified and crucial in ensuring that statutory bodies do not exceed their mandates. By deciding to intervene, the court underscored the importance of legal certainty and the protection of rights, particularly in cases where the procedural legality of an action (such as levying tariffs) is in question. This decision reinforces the judiciary's role as a safeguard against potential administrative overreach, thereby enhancing the rule of law and ensuring that statutory processes are not only followed but also conducted within their legal framework

Conclusion

The objections raised failed and the suit is dismissed.
Ruling available here.