Music lobby loses court case against regulator

The High Court yesterday ruled that the Music Copyright Society of Kenya is a Collective Management Organisation and therefore requires a licence from Kenya Copyright Board (Kecobo) to administer and enforce its intellectual property rights.

Justice Anthony Mrima dismissed the suit which had been filed by MCSK claiming the society was acting on behalf of copyright holders and as such was an agent and CMO within the meaning of the Copyright Act.

MSCK had moved to court claiming it was not a Collective Management Organisation (CMO) within the meaning of Section 46 of the Copyright Act.

It accused Kecobo of continually, unconstitutionally and unlawfully attempting to exercise oversight and control over it by requiring it to obtain a license to administer and enforce its intellectual property rights.

Policy decisions

It contended that Sections 46, 46A-G are not unconstitutional and sought various declarations against Kecobo, the Attorney General and the ICT Cabinet Secretary.

Kecobo opposed the suit arguing that MSCK was a CMO and was subject to the Copyright Act.

The board further contended that Sections 46, 46A-G are not unconstitutional and that Edward Sigei, the Executive Director of Kecobo,  was not in contempt of any court orders.

Justice Mrima agreed with the Music Copyright Board noting that State regulation of intellectual property rights is provided for in Article 40(5) of the Constitution.

“However, in the course of undertaking the regulation, whether through statutory interventions or by policy decisions, the State must ensure that it acts within the confines of the Constitution and the law more so as specifically cautioned in Article 40(2), (3) and (4) of the Constitution,” he said.