Music Copyright Society of Kenya v Kenya Copyright Board & 2 others
The bottom line
#Kenya's Court of Appeal has confirmed that music royalty bodies like MCSK must be licensed and regulated as Collective Management Organisations under the Copyright Act.
What this practically means
#Executive summary
#Key legal issues
#Constitutionality of the CMO licensing scheme (sections 46 and 46A-G of the Copyright Act)
The impugned provisions are a reasonable and justifiable limitation of the freedom of association under Article 36 and do not violate the right to property under Article 40; allegations of arbitrariness and discrimination under section 46A were unsupported by any evidence.
The court traced the worldwide history and rationale of CMOs, noting that individual management of music rights is impracticable, and applied the Article 24(1) limitation analysis. It found the licensing of CMOs protects rights holders and users, promotes accountability and transparency, and that membership is voluntary. No gazetted approved tariff was produced to prove arbitrariness or discrimination; the trial judge's finding that the claim was illusionary was faultless.
Whether MCSK is a rights holder or a CMO
MCSK is a CMO within section 2 of the Copyright Act, becoming one once approved and authorised by KECOBO under section 46; its Memorandum of Association and statutory features evidence this.
The court examined MCSK's Memorandum of Association, whose objects are to exercise and enforce copyright on behalf of members and foreign proprietors by reciprocity, to collect and distribute royalties. It matched MCSK's features to the criteria in section 46(4): a company limited by guarantee, non-profit, with collection and distribution of royalties as principal objectives. MCSK had also previously affirmed in litigation that it is a CMO.
Contempt of court against the Executive Director of KECOBO
The contempt proceedings were bound to fail because the order said to have been disobeyed named Music Copyright Authority, not MCSK, and MCSK failed to discharge the heightened burden of proof for contempt.
The order extracted erroneously referred to Music Copyright Authority instead of MCSK; MCSK knew of the error and had an opportunity to amend but did not. Further, contrary to counsel's assertion, KECOBO had no counsel present when the order was made, so notice could not be established, and the contempt standard - higher than balance of probabilities, almost beyond reasonable doubt - was not met.
Legal principles established
#- The collective management of copyright through licensed CMOs under the Copyright Act is a reasonable and justifiable limitation of the freedom of association and the right to property, and does not offend Articles 27, 36 and 40 of the Constitution.
- An organisation whose objects are the collection and distribution of royalties on behalf of members is a CMO within section 2 of the Copyright Act and must be approved and authorised by KECOBO under section 46.
- Contempt of court must be proved to a standard higher than a balance of probabilities, and a party can only be cited for disobeying an order that, in a defined way, relates to that party.
Court orders
#- 1.Appeal dismissed with costs
- 2.Petitioner/appellant to bear costs of the petition and the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. E435 of 2020
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Act / Article 164 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Music Copyright Society of Kenya v Kenya Copyright Board & 2 others", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1172/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.