Copyright Infringement
Xpedia Management Limited & 4 others v Attorney General & 5 others [2016]
Facts
The 1st and 2nd petitioners are LLC that deal in the business of promotion and distribution of various musical and artistic works through digital platforms. The 3rd, 4th and 5th Petitioners work in various parts of Kenya and are involved in creation and performance of musical works.
The 2nd respondent is the Kenya Copyright Board (KECOBO) established under the Copyright Act with the mandate of licensing and supervising the activities of CMOs. The 3rd Respondent is a licensed CMO that represents music producers (Kenya Association of Music Producers, KAMP). The 4th Respondent is a licensed CMO that represents performers, Performers Rights Society of Kenya (PRISK). The 5th Respondent is a company limited by guarantee and licensed as a CMO, the Music Copyright Society of Kenya (MCSK).
Safaricom Ltd a PLC is the registered owner of the Skiza Tunes platform that allows its subscribers to select and download ring back tones to their phones.
The petitioners alleged section 30A of the Copyright Act of Kenya is unconstitutional, violating the petitioners' rights to freedom of association and property as guaranteed under Articles 36 and 40(5) of the Constitution, respectively. The petitioners argued that this section allowed Collective Management Organizations (CMOs) to collect payments on behalf of copyright owners, thereby depriving them of their right to directly collect payments from users of their works.
The petitioners contended that they have acquired copyright to works from numerous artists and entered into agreements with mobile service providers for the distribution of these works. However, they are aggrieved by section 30A, which they argue forces copyright holders to join CMOs to receive payments and subjects them to unfair collection practices by these organisations.
The petitioners further contended that the implementation of section 30A has led to confusion and overcharging by CMOs, as well as a lack of clear direction from the Kenya Copyright Board (KECOBO). They argued that the roles of different CMOs overlap, leading to multiple payments for the same copyright works, which violates constitutional rights and fair administrative action.
Additionally, the petitioners disputed the interpretation of section 30A by CMOs, particularly regarding the transferability of performing rights and the authority to collect royalties. They maintain that CMOs have exceeded their mandate and infringed upon the petitioners' property rights by demanding royalties without proper authorization.
In their plea to the court, the petitioners seek various declarations, including the unconstitutionality of section 30A, infringement on property and association rights, and improper licensing practices by KECOBO. They also request injunctions against CMOs from collecting royalties without explicit consent and orders for clearer delineation of CMO roles. Finally, they ask for costs to be borne by the respondents
The 1st Respondent, represented by the Attorney General, opposed the petition on the grounds that it lacked specific precision in disclosing grounds for nullification of section 30A of the Copyright Act. They argued that the petitioners had not demonstrated a violation of their rights and claimed it amounted to an abuse of court process. Additionally, they contended that section 30A did not defeat the purpose of the Copyright Act and prayed for its dismissal with costs.
The 2nd Respondent, Kenya Copyright Board (KECOBO), argued that section 30A did not violate constitutional rights and emphasized its authority to license Copyright Collecting Societies. They maintained that KAMP, PRISK, and MCSK were the only authorized Collective Management Organizations (CMOs) for collecting royalties in Kenya.
KAMP and PRISK, the 3rd and 4th respondents, opposed the petition, stating that the petitioners' grievances should be addressed through civil suits. They argued that CMOs facilitated easier collection of royalties and provided greater bargaining power for artists.
MCSK, the 5th respondent, opposed the petition, asserting its lawful status as a CMO licensed to collect royalties on behalf of copyright holders. They argued that the petitioners' claims lacked specificity and evidence of harm caused by their agreements with Safaricom.
Safaricom, the Interested Party, asserted compliance with the law and the necessity of CMOs in managing copyright royalties efficiently. They argued that section 30A aimed to balance the interests of artists and third parties, ensuring equitable remuneration.
Overall, the respondents argued that the petitioners had not demonstrated a violation of their rights or harm caused by section 30A. They emphasized the importance of CMOs in facilitating the collection and distribution of royalties, as mandated by the Copyright Act. Additionally, they contended that the petition lacked specificity and evidence to warrant its consideration by the court.
Issue
- Whether the High Court is the appropriate forum for this matter?
- Whether Section 30A of the Copyright Act is unconstitutional and a violation of the constitutional rights of the petitioner under Articles 36, 40 and 47?
Rule
Whether the High Court is the appropriate forum for this matter?
The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989]- Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings.
Article 23 of the Constitution - The High Court has jurisdiction to hear and determine applications for redress of a denial, violation or infringement of or threat to a right or fundamental freedom in the Bill of Rights
Article 165 (3) - The High Court has a very wide jurisdiction conferred onto it.
- The High Court has unlimited original jurisdiction in criminal and civil matters.
- It has jurisdiction to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened.
- The High Court has jurisdiction to hear any question regarding the interpretation of the Constitution.
- This includes determining if any law is inconsistent with or contravenes the Constitution.
- It also involves determining if anything done under the authority of the Constitution or any law is inconsistent with or contravenes the Constitution.
Whether Section 30A of the Copyright Act is unconstitutional and a violation of the constitutional rights of the petitioner under Articles 36, 40 and 47?
Section 30A of the Copyright Act, enacted in 2012, establishes the "Right to equitable remuneration for use of sound recordings and audio-visual works." The key provisions of this section include:
1. Equitable Remuneration: If a sound recording is commercially published, used for broadcasting, or publicly performed, the user must pay a single equitable remuneration to both the performer and the producer of the sound recording. This remuneration is paid through the respective collective management organisations (CMO) and is shared equally between the producer and performer.
2. Fixation of Performances: Similarly, if a performance is commercially published, used for broadcasting, or publicly performed, the user must pay a single equitable remuneration to the performer through the CMO.
3. Duration of Right: The right to equitable remuneration under this section lasts from the date of publication of the sound recording or performance until the end of the fifth calendar year following the year of publication, provided that the recording or performance remains protected under sections 28 and 30 of the Copyright Act.
4. Definition of Commercial Purpose: Sound recordings and performance fixations made available to the public through wire or wireless means, allowing individuals to access them at their chosen time and place, are considered as if they have been published for commercial purposes under this section.
Overall, section 30A establishes the framework for ensuring fair compensation for the use of sound recordings and performances, specifying the obligations of users and the rights of performers and producers, as well as the duration of the right to equitable remuneration.
Article 2 (4) of CoK - Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid
Ndyanabo v Attorney General of Tanzania - there is a general presumption that every Act of Parliament is constitutional and the burden of proving the contrary rests upon a person who alleges otherwise. (The question of a law’s validity in cases is whether or not it limits the rights and fundamental freedoms set out in the Bill of Rights)
R v Big M Drug Mart Ltd - Both Purpose and effect in determining constitutionality; either an unconstitutional; either an unconditional purpose or an unconstitutional purpose or an invalidate legislation.
Reserve Bank of India v Peerless General Finance and Investment Co Ltd and Others - Interpretation must depend on the text and the context. They are bases of interpretation.
Trusted Society of Human Rights v Mumo Matemu High Court Petition - petitioners have a responsibility to demonstrate with a reasonable degree of precision, the manner in which their rights under the provisions of the Constitution of Kenya have been threatened with violation.
Analysis
Whether the High Court is the appropriate forum for this matter?
The petitioners primarily contested the validity of section 30A of the Copyright Act, alleging that it violates their constitutional rights protected under Articles 36, 40, and 47 of the Constitution. The court acknowledges its jurisdiction, as per Article 165(3) of the Constitution, to determine whether legislation is inconsistent with the Constitution. Additionally, Article 22 grants individuals the right to approach the court if they believe their constitutional rights have been violated. The High Court is empowered by Article 23 to hear and address such grievances.
While the petitioners' concerns might ordinarily be addressed in a civil court for commercial matters, the court asserts its authority to address constitutional questions arising in commercial disputes, as granted under Article 165(3). Despite the commercial nature of the grievances, the court finds merit in hearing the petition concerning the constitutionality of section 30A and its alleged infringement on the petitioners' constitutional rights. The court deems it appropriate to consider these constitutional questions rather than dismissing the petition outright. However, the court notes that determining whether these constitutional violations indeed occurred requires further examination, which it intends to undertake.
Issue 2: Whether Section 30A of the Copyright Act is unconstitutional.
Whether Section 30A violates Article 36 of the CoK?
Article 36 of the CoK guarantees every person the right to freedom of association that encompasses the right to form, join or participate in the activities of an association of any kind. And the right not be compelled to join an association of any kind. The Court interpreted Section 30A to enhance the collection of royalties for copyright holders through the use of CMOS and not force a copyright member to join an association.
Whether Section 30A violates Article 40?
The petitioners argued that Section 30 A (1) and (2) prevented owners from directly receiving remuneration for their works as the section requires that payment of royalties is made to CMOS, thereby limiting the ability of copyright owners to directly receive payment for their works.
The Court reasoned that Section 30A did not impede on the rights of copyright owners but rather provided a mechanism for collective management that is crucial for monitoring and royalty collection in the digital age.
Whether Section 30A violates Article 47 of the CoK?
The petitioners alleged that licensing and supervision of CMOs by KECOBO violated Article 47 of the CoK. They argued that licenses issued by KECOBO lacked specific details regarding the class of rights or category works.
KECOBO asserted that its actions were in line with legal provisions and the certificates were in the prescribed form. KECOBO maintained that the petitioners have not shown how licensing and supervision practices violated Article 47.
The Court reasoned that the petitioners failed to provide evidence as to how their rights were infringed by KECOBO’s actions.
The Court further noted that it is not up to the Court to inquire into the manner in which licensed CMOS are carrying out their functions. That is within the mandate of the Kenya Copyright Board.
The judgment of the High Court in this case carefully balances the constitutionality of legislative provisions against the practical necessities of copyright management. While the decision to uphold Section 30A is legally robust given the current frameworks and interpretations, it slightly glosses over the practical and economic realities faced by copyright owners under the enforced collective management system.
The High Court's approach in adjudicating this matter illustrates the complex interplay between legislative intent and constitutional guarantees. The decision to uphold or strike down Section 30A will reflect broader themes in copyright law, particularly the extent to which individuals can be compelled to participate in collective management structures versus maintaining individual autonomy over their creative outputs
Conclusion
The Court found no violation of Articles 40, 46 and 47 of the Constitution by Section 30A of the Copyright Act.
Judgement available here.