Twin loss for artistes lobby and copyrights board in legal dispute
They say the law is a double edged sword that can cut both ways. This is the experience of artistes lobby, Music Copyright Society of Kenya (MCSK) and Kenya Copyright Board (Kecobo) after they went to court hoping to tilt the scales of justice in their favour.
They lost the cases and were condemned to shoulder the cost after they failed to persuade the judge in two separate suits filed two years ago. On one hand, MCSK was seeking orders to block Kecobo from over-sighting it. On the other, the board was seeking court's finding that it be allowed to collect royalties on behalf of artists in the event it de-registers MCSK and other Collective Management Organisations (CMO).
But they suffered a blow after the High Court dismissed and struck out their cases. In its case, MCSK had sued Kecobo arguing that the copyrights the board is acting illegally for requiring it to obtain a license before collecting loyalties on behalf of authors, composers, arrangers and publishers of musical works. The society claimed it was not an MNO and therefore the copyrights board had no powers over it.
At the same time, it argued, Kecobo had violated its right to property by imposing a flat rate tariff on broadcast of musical works.
However, Justice Anthony Mrima found that the MCSK acts on behalf copyrights holders and therefore a CMO. According to the judge, MCSK had in a different case vehemently defended itself as a CMO.
"Having carefully considered the record, this Court did not come across any evidence that the Petitioner is a copyright rights holder. What is on record is that the Petitioner is acting on behalf of copyright rights holders. As such, the Petitioner is an agent and can only be a CMO within the meaning of the Copyright Act," said Justice Mrima. "What, therefore, the petitioner is attempting to engage in, in this matter, is to approbate and reprobate on whether it is a CMO. Such approach is impermissible and holds out the petitioner (MCSK) as a vexatious litigant," he added.