Copyright Infringement
Mercy Munee Kingoo & another v Safaricom Limited & another [2016] eKLR
Facts
The petitioners, well-known in the music and audiovisual industries, had originally entered into agreements with various Premium Rate Service Providers (PRSPs) to digitize and distribute their musical works through the 1st Respondent's Skiza Tunes Portal. This arrangement, which began in 2008, initially facilitated direct payment of royalties to the artists through their respective PRSPs. However, a significant change occurred in 2015 following the introduction of Section 30A into the Copyright Act by the Statute Law (Miscellaneous Amendments) Act. This amendment mandated the remittance of royalties through CMOs, a shift in practice that the 1st Respondent adopted, ceasing direct payments to artists via PRSPs and instead routing them through organizations like the Kenya Association of Music Producers (KAMP), Performance Rights Society of Kenya (PRISK), and the Music Copyright Society of Kenya (MCSK).
The petitioners contended that the 1st Respondent's switch to distributing royalties via CMOs, without consulting the artists or obtaining their consent to join such organizations, infringed on their constitutionally guaranteed intellectual property rights. They argued that they were neither members of nor interested in joining any CMO and that the royalties should be distributed as per the original contracts with the PRSPs. They further claimed that the legislative amendment introducing Section 30A was enacted without adequate public participation, violating Article 118 of the Constitution.
The petitioners prayed the High Court to stop Safaricom from remitting artists’ royalties through collective management organisations (CMOs). They sought a permanent injunction restraining Safaricom from paying royalties from the Skiza portal to CMOs, and instead wanted their own existing arrangements with Premium Rate Service Providers respected. They also asked the court to declare that the August 2015 agreement between Safaricom and the CMOs was irregular and unlawful for lack of public participation and for infringing their constitutional rights. Further, they challenged the Statute Law (Miscellaneous Amendments) Act 2012, which introduced section 30A into the Copyright Act, arguing that it was enacted without public participation and was therefore unconstitutional. In addition, they prayed for costs of the petition and any further relief the court considered appropriate.
1st Respondent’s Defense:
The 1st Respondent defended its actions by asserting that the agreement signed with the CMOs was not only lawful but mandated by the changes in the copyright law. They argued that the burden of proof regarding the adequacy of public participation in the legislative process rested with the petitioners. Additionally, they claimed that the issues presented were already adjudicated in a prior case, Nairobi High Court Constitutional Petition Number 317 of 2015, thereby rendering the current petition res judicata.
2nd Respondent's Defense:
Echoing the 1st Respondent's arguments, the 2nd Respondent (one of the CMOs) also contended that the petition was res judicata, arguing that the matters in dispute had been conclusively settled in the previous legal proceeding.
Issue
- Whether the petition is res judicata?
- Whether the amendment of the Copyright Act and introduction of Section 30A observed the principles of public participation or whether section 30A is unconstitutional?
- Whether the reliefs sought should be granted?
Rule
Whether the petition is res judicata?
Theresa Costabir v Alka Roshanlal Harbanslal & Another - Section 7 of the Civil Procedure act raises four prerequisites to be met for a matter to be deemed res judicata.
1. A previous suit in which the same matter was in issue
2. The parties are the same or litigating under the same title
3. A competent court heard the matter in issue and determined
4. The issue has been raised once again in a fresh suit.
Section 7 of the Civil Procedure Act - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
Section 30A of the Copyright Act - 1) If a sound recording is published for commercial purposes or a reproduction of such recording is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer and the producer of the sound recording shall be paid by the user through the respective collective management organisation, and the remuneration shall be shared equally between the producer of the sound recording and the performer.
(2) If a fixation of a performance is published for commercial purposes or a reproduction of a fixation of a performance is used for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer shall be paid by the user to the collective management organisation.
(3) The right of equitable remuneration under this section shall subsist from the date of publication of the sound recording or fixed performance until the end of the fiftieth calendar year following the year of publication, provided the sound recording or fixed performance is still protected under section 28 and 30.
(4) For the purposes of this section, sound recordings and fixations of performances that have been made available by wire or wireless means in such a way that members of the public may access them from a place and a time individually chosen by them shall be considered as if they have been published for commercial purposes.
Whether the amendment of the Copyright Act and introduction of Section 30A observed the principles of public participation or whether section 30A is unconstitutional?
Samow Mumin Mohammed & 9 others v Cabinet Secretary, Ministry of Interior Security and Co ordinating & 2 others [2014] - This emerges from a long-standing common-law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse actar meaning all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law.”
Robert N Gakuru & Others v Governor Kiambu County & 3 Others [2014] - The Court held that public participation ought to be real and not illusory and ought not be treated as a mere formality for the purposes of fulfilment of the constitutional dictates.
Article 118 of the Constitution of Kenya 2010 - Public access and participation
1. Parliament shall
a. conduct its business in an open manner, and its sittings and those of its committees shall be in public; and
b. facilitate public participation and involvement in the legislative and other business of Parliament and its committees
2. Parliament may not exclude the public, or any media, from any sitting unless in exceptional circumstances the relevant Speaker has determined that there are justifiable reasons for the exclusion.
Law Society of Kenya v Attorney General 2 others [2013] - The burden of showing that there has been no public participation or that level of public participation within the process does not meet the constitutional standards is on the petitioner.
Article 36 of the Constitution of Kenya -
(1)Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2) A person shall not be compelled to join an association of any kind.
(3) Any legislation that requires registration of an association of any kind shall provide that—
(a) registration may not be withheld or withdrawn unreasonably; and
(b) there shall be a right to have a fair hearing before a registration is cancelled.
Analysis
. Res Judicata:
The argument of res judicata presented by the respondent’s hinges on whether the issues presented in this case were, or could have been, decided in any prior case between the same parties. The court's examination reveals that while similar issues may have been explored in Nairobi High Court Constitutional Petition Number 317 of 2015, the specific challenge to the constitutionality of Section 30A and its compliance with required public participation standards was not addressed. Moreover, the court clarifies that the constitutionality of a statute can be contested multiple times as long as the context or grounds of challenge differ, thus not satisfying the strict criteria of res judicata as outlined in Section 7 of the Civil Procedure Act.
2. Public Participation:
The petitioners argue that the enactment of Section 30A did not involve adequate public participation, violating Article 118 of the Constitution which mandates inclusive and transparent legislative processes. The court's analysis, supported by precedent in Robert N Gakuru & Others v Governor Kiambu County & 3 Others, indicates that public participation must be "real and not illusory," suggesting that the swift enactment of the amendments within a mere three days likely precluded meaningful engagement with affected stakeholders, thereby undermining the legislative intent of inclusivity.
3. Infringement on Constitutional Rights:
A critical aspect of this case is the allegation that Section 30A infringes upon the artists' constitutional rights, particularly the freedom of association as guaranteed under Article 36 of the Constitution. By mandating that all royalties be channeled through CMOs, the law compels artists to associate with organizations they might not wish to join or support. The court acknowledges this argument, emphasizing that such a statutory requirement restricts artists' control over their intellectual property and their choice of association, which are both protected under the Constitution.
The court's decision and reasoning in this case highlight significant considerations regarding the enactment of Section 30A and public participation. The swift implementation of Section 30A without sufficient public participation was found to be inconsistent with the constitutional requirement for inclusive legislative processes. Adequate public participation is crucial to ensure that the interests of all stakeholders, especially those directly impacted by the legislation, are taken into account.
Additionally, the court addressed the issue of the petitioners' freedom of association. The requirement for artists to join CMOs, as mandated by Section 30A, was deemed to infringe on their constitutional rights, affecting their control over their intellectual property.
This decision emphasized the need for legislative bodies to adhere to constitutional principles and to engage with stakeholders in a transparent and inclusive manner. It serves as a reminder that laws should be enacted with due consideration of fundamental rights and proper procedural conduct.
Conclusion of the Analysis
The court's decision to declare Section 30A unconstitutional for failing to ensure public participation and for infringing fundamental freedoms marks a significant affirmation of the rights of artists in the digital age. It underscores the necessity for legislative bodies to engage meaningfully with all stakeholders, particularly when enacting laws that deeply impact the livelihoods and proprietary rights of a specific community. This ruling not only rectifies the procedural flaws in the enactment of the law but also reinforces the constitutional protections afforded to intellectual property owners, ensuring that their rights are not subordinated to administrative convenience or broader economic policies without due process and consent.
Conclusion
The Court declared that the August 2015 agreement between 1st Respondent and the CMOs is irregular, unlawful and infringes on the petitioner’s constitutional rights.
Judgement to be found here