Kenya Association of Music Producers (KAMP) v Kenya Copyright Board and Pavrisk & 3 others (Tribunal Case E001 of 2024) [2024] CPT 1861 (KLR) (16 July 2024) (Judgment)
Neutral citation:
[2024] CPT 1861 (KLR)
Republic of Kenya
Tribunal Case E001 of 2024
EM Lenjo, Chair
July 16, 2024
Between
Kenya Association of Music Producers (KAMP)
Appellant
and
Kenya Copyright Board and Pavrisk & 3 others
Respondent
Judgment
I. Preliminary and Introduction
1.The instant Appeal before the Hon Tribunal invokes our jurisdiction in respect of the authority conferred on us by the law under Section 48(4)(b)(i), Copyright Act, 2001-as amended (hereafter “the Act”) as read with Section 21(3), of the Act. The Kenya Association of Music Producers (hereafter “KAMP”) invites the Tribunal, by way of its Appeal dated 14th June, 2024, to enquire into, and determine whether the decision by the Kenya Copyright Board (hereafter “KECOBO”) dated 6th and 7th June 2024 - undertaken pursuant to Section 46 of the Act read with Regulation 3 and 4 the Copyright (Collective Management) Regulations – in the manner particularized in its Notice and Memorandum of Appeal dated 14th June, 2024.
2.In support of the appeal before the Tribunal, KAMP lodged a Witness statement dated 14th June, 2024 made by Maurice Okoth, as well as a List and bundle of documents of even date. On the 9th of July, 2024 following an oral application by Mr Atieno, Learned Counsel appearing for KAMP, attendant to concession by all counsel that they wished to argue the appeal by way of written submissions, Mr Okoth was sworn for the limited purpose of adopting and adducing his statement as sworn testimony, and the documents lodged therewith as exhibits before the Tribunal. KAMP subsequently filed its written submissions and further written submissions dated 10th and 12th July, 2024 respectively.
3.KECOBO, and Performing and Audio-Visual Rights Society of Kenya (hereinafter PAVRISK) sued and named as the 1st and 2nd Respondents, respectively, both opposed the Appeal by way of their Replying Affidavits sworn by Sharon Wata and Joseph Njagih respectively both dated 5th July, 2024. The Respondents filed their respective written submissions and list and bundle of authorities both dated 11th July, 2024. The Music Copyright Society of Kenya (hereinafter “MCSK”) filed written submissions dated 11th July, 2024.
4.On its part MCSK sued and named as the 1st Interested Party, lodged a Memorandum of Response, supported by the Affidavit sworn by Dr Ezekiel Mutua dated 5th July, 2024. The substance of this response was to support the Appeal by KAMP; MCSK also prayed for the grant of various reliefs from the Tribunal.
5.Regrettably, the Film Makers Rights Achievers of Kenya (hereafter “FRAK”) and the Collective Management Services (hereafter “CMS”), despite being sued and named as the 2nd and 3rd Interested Parties on their part, failed to enter appearance in this appeal or file any pleadings or documents howsoever, either supporting or opposing the appeal, to assist in the resolution of this certainly important matter.
6.As a further preliminary, the Tribunal notes that by reference in the pleadings and submissions lodged by the various parties, our attention has been drawn to the subsistence of three (3) separate suits at the High Court HCOMM E014 of 2024, HC JR E138 of 2024 and HC JR E126 of 2024, and certain interim reliefs made the Hon High Court in the former 2 matters. It has however been pleaded before us that the issues for determination before us, though contiguous, remain disparate and distinguished from those pending before the Hon Learned Judges of the High Court.
7.This plea has not been controverted, neither have we been furnished with any pleadings in any of those cases, nor heard any objection from any of the litigants herein to determine otherwise. We therefore warn ourselves to restrict our determination to the specific questions as submitted before us by the parties, in accordance with our jurisdiction erstwhile noting the extremely significant dispute before us centering on effective collective management of copyright and related rights, to enable the creatives’ economy.
II. Brief Material Background
8.The material facts upon which our decision herein is made, is as set-out in the parties pleadings lodged before us and identified under para 1, 2, 3 and 4 above. We have considered these factual averments in detail as well as the evidence produced in support thereof, and briefly highlight as follows:
9.KAMP notes that in answer to an invitation by KECOBO dated 9th April, 2024 for registration of CMOs, and an advertisement dated 21st February, 2024; KAMP wrote to KECOBO vide letters dated 26th February, 2024 and 2nd April, 2024 and sought various clarifications on matters arising therefrom. It is unclear whether these were satisfactorily responded to, if at all. KAMP notes that on 24th April, 2024 it subsequently applied to be registered as a single (multi-rights) CMO, and in the alternative sought licensing to administer the specific class of rights for sound recording producers. We note that, KAMP wrote to both MCSK and PRISK on 18th March, 2024, where it cited intended amendments to the Copyright Act to allow for a singular multi-rights CMO. We also note KAMP’s assertion that it administers audio-visual rights pursuant to Article 3.1.1.2 of its MemArts, on behalf of Audio-visual Rights Management (AVRIM) and Film Rights Advocacy Kenya (FRAK); this in addition to an MOU it has with MCSK and PRISK (now PAVRISK).
10.It is KAMP’s case that KECOBO responded to their application vide a letter dated 13th May, 2024 and asked for clarification on definition of ‘member’ per KAMP’s MemArts, as well as further particulars on distribution of royalties for the 1st Quarter of 2024. We note that KECOBO required this clarification to be tendered within 2 days. KAMP asserts that it responded vide a letter dated 15th May, 2024 detailing developments including availing excerpts of its Board Resolution on name change, amendments to the MemArts and expansion of the Board to cater for change into a single (multi-rights) CMO. Equally, that it availed explanations on the particulars on distribution of royalties for the 1st Quarter of 2024, as sought.
11.KAMP further notes that on 23rd May, 2024 KECOBO invited members of the public to tender written submissions on the five (5) applicants seeking registration as CMOs. The five entailed the Appellant, 2nd Respondent and the 3 interested parties as disclosed in the advertisement, together with their respective class as advertised.
12.KAMP asserts that a public consultation hearing took place on 28th May, 2024 under the auspices of KECOBO, wherein it emerged that the PAVRISK 2 had not distributed royalties since 2022, and that the PAVRISK’s members were displeased with the management of funds collected by PAVRISK.
13.KAMP notes that vide a press statement signed by KECOBO Board Chairperson Hon. Joshua Kuttuny, they learnt PAVRISK had been licensed to collect and distribute royalties for the entire music sector in Kenya. We have noted from the advertisement, KECOBO highlighted its reasons for electing to license a singular CMO in the music sector and audio-visual work. Subsequently, on 10th June, 2024 KAMP was notified of the rejection of its application with the reasons thereon set-out (these five(5) have been discussed subsequently). We note that KAMP indicates that it substantively responded to these reasons (this has similarly been discussed in detail hereafter).
14.KAMP observes that despite seeking clarification on 11th June, 2024 as to the reason for rejection of its application, KECOBO supposedly only responded by requesting for 21 days to reply – which KAMP observes is ‘a tactful delay of justice.’ KAMP further observed that whereas other applicants were accorded an opportunity to avail clarifications this was not accorded to them.
15.In answer to the appeal, the Respondents (KECOBO and PAVRISK) and MCSK substantively reiterated the facts as laid out by KAMP in as far as the invitation for applications from interested CMOs, the number of applicants, invitations for written memoranda from the public, conduct of public hearings and the eventual licensing of the PAVRISK as the sole (multi-rights) CMO for the subject rights, save that:
16.KECOBO on its part observes that the invitation was made on 10th April, 2024, in answer to its invitation for written memoranda dated 30th April, 2024 wherein it received 4000 written representations, and that it considered the written representations vis-à-vis views tendered during the convened public hearing in determining the capacity of the various applicants to collect and distribute royalties.
17.We note that the criteria guiding KECOBO in determining this capacity, is prescribed under Reg 5(3)(a)-(k), Copyright (CMO) Regulations as stipulated hereinbelow. Importantly we note that the advertisement produced by KECOBO as CT-2 itemizes the respective rights and/or classes of rights for which the KECOBO was considering licensing the applicant CMOs. Regulation 5(3) of the (Collective Management) Regulations, 2020 states as follows:
18.PAVRISK on its part asserts that it lodged its application dated 17th April, 2024 and lodged on 24th April, 2024 (produced in evidence as exhibit marked JN-2), in which it applied for a sole multi- rights license. It observes that it did so having met the criteria. Conversely, it asserts that as at the time of invitation by KECOBO, KAMP had supposedly not qualified to hold a multi-rights license. It asserts that despite the adverse mention by the Appellant/KAMP specifically under grounds vii, viii and ix (under items 2) Grounds of Appeal, supposedly no evidence was led in support. It also asserts that it had lodged a distribution schedule for 2023 as annexure 17 in its application to KECOBO, which it observes disproves assertions of failure to distribute royalties from 2022.
19.PAVRISK asserts that the law does permit licensing of singular CMO, and that the law also allows rights holders to form a singular CMO. PAVRISK proceeded to urge that consequently its MemArts under Clauses 4(a)&(b) (produced in evidence as exhibit marked JN-7) did in fact accommodate this.
20.Finally PAVRISK, observes that having been licensed vide the Certificate of Renewal dated 7th June, 2024 (produced in evidence as exhibit marked JN-6), it promptly terminated the hitherto subsisting joint operation arrangement (MoU) with MCSK and KAMP vide a letter dated 10th June, 2024 (produced in evidence as exhibit marked JN-8).
21.MCSK has on its part, asserted that the license to PAVRISK is unlawful and irregular, and proceeded to seek for the grant of various reliefs from the Tribunal (we’ve discussed this hereafter). Particularly, MSCK asserts that it has been administering the economic rights for authors, composers, arrangers and publishers of musical works in Kenya, and affiliate societies from 1983. MCSK urges that a mandatory precondition must be consent from owners and execution of deeds of assignment, for which it currently holds approximately 16,000.
22.MCSK asserts that it is unlawful to unilaterally and arbitrarily re-assign these rights, and that the impugned decision by KECOBO, seeks to achieve this unlawful end at the behest of PAVRISK.
23.We note that MCSK urges that on the 5th of March, 2024 the CEO of KECOBO wrote to it advising of the intent to extend MCSK’s license for 6 months, and sought for various documents. MCSK asserts that it responded on 8th March, 2024 and availed various documents. Vide 2 letters both dated 15th March, 2024 KECOBO did acknowledge receipt of the documents, and invited them for an interview for 3rd April, 2024 towards renewal. On 24th April, 2024 they lodged their application for renewal, as was customary for CMOs to apply for specific classes of rights. MCSK asserted that the law does not permit application for all licenses (sic), further that whereas PAVRISK only applied for its members, the license failed to conform to the application. However we note at para 16 of its Memorandum vide matrix prepared and availed by MCSK it is acknowledged that PAVRISK actually did apply for a multi-right license.
24.Finally, MCSK asserts that on the 30th of May, 2024 it received an invoice from KECOBO to cater for its 2024 renewal. However, as it made arrangements to settle this invoice, it learnt through the media that PAVRISK had been licensed as the sole licensee including in respect of MCSK’s members rights. MSCK notes that under the law it is unavailable for KECOBO to license two (2) CMOs for the same class of rights. It concludes by observing that there is no basis on how KECOBO arrived at the decision to issue a sole license, and to date KECOBO has never communicated a rejection of MCSK’s application. It considered KECOBO’s action as depriving its members of the freedom of association, unprocedurally (and through the backdoor) winding-up MCSK with spiral-down-effect and abridgment of employees’ rights on imminent loss of employment.
25.The Tribunal has studied in detail the factual background upon which the Appeal herein has been brought, as led by the respective parties and has applied the law in seeking to resolve the dispute herein.
III. Issues for Determination
26.Despite the vibrato with which parties have presented their pleadings, we do not find this to be a complicated dispute, and have identified the following five (5) issues as dispositive of the appeal:i.Whether the Appeal by KAMP is defective for want of form contrary to Part III of the Copyright Tribunal (Procedure) Regulations, 2022, at Rule 9 thereof; and, for failure in the order and examination of witnesses contrary to Section 146 of the Evidence Act Cap 80, if at all?ii.Whether KECOBO acted within the law in resolving to appoint and/or license PAVRISK as the sole Collective Management Organization (CMO) in Kenya under certificate of renewal dated 7th June, 2024?iii.Whether KECOBO acted within the law in failing to appoint and/or license KAMP and MCSK as CMOs in Kenya, at all?iv.Whether the Hon. Tribunal has jurisdiction to hear and determine the dispute; andv.What reliefs the Hon Tribunal should grant, including on costs?
IV. Analysis of the Law On Issues
I. Whether the Appeal by KAMP is defective for want of form contrary to Part III of the Copyright Tribunal (Procedure) Regulations, 2022, at Rule 9 thereof; and, for failure in the order and examination of witnesses contrary to Section 146 of the Evidence Act Cap 80, if at all
27.First, we observe that this Tribunal is established under Article 169(1)(d), Constitution as read with Section 48(1), Constitution. The Tribunal is enjoined by Article 159(2)(d), Constitution to ensure that in the discharge of its mandate, in the administration of justice it does so “without undue regard to procedural technicalities.” Therefore, in determination the invitation by the 1st Respondent (KECOBO) to strike-out summarily the Appeal by KAMP, and effectively shut them from the seat of justice without a hearing on the merit (or lack thereof) of their appeal, would we be paying undue regard to a procedural technicality? Such is the judicial lense we will apply to determine this question.
28.We say so minded of the determination by the Supreme Court in Zacharia Okoth Obado v Edward Akong’o Oyugi & 2 Others [2014] eKLR, (in a decision where the Notice of Appeal had not been served at all!) at para 43 thereon observed that
29.We note that KECOBO argues that the Appeal by KAMP is defective for want of form contrary to Part III of the Copyright Tribunal (Procedure) Regulations, 2022, at Rule 9 thereof. KECOBO urges that this provision prescribes that the appellant ought to have filed an affidavit in support and not a witness statement.
30.It is not clear to us, what exact prejudice, if any, KECOBO apprehends that it will or did suffer, from this omission – if at all. Pursuant to a consent from all parties, The Tribunal acquiesced to have the Appeal urged by way of written submissions, and noting that the statement by the Appellant was unsworn, the Tribunal permitted the Appellant’s application to have his witness sworn and adopt his statement as well as the documents lodged therewith. It is important to note that no objection nor opposition howsoever was made by any of the counsel present.
31.It is not enough that KECOBO asserts the supposed procedural infraction, it needed to urge the prejudice it would suffer on account of the infraction, if at all. In any event, the rules of procedure, Copyright Tribunal (Procedure) Regulations 2022, referenced by the 1st Respondent have not been adopted by the Tribunal.
32.Further, on its second limb, KECOBO urges that the Appeal and the proceedings therein are supposedly defective for violating the order and examination of witnesses contrary to Section 146 of the Evidence Act Cap 80. It urges that whereas the Appellant’s witnesses supposedly testified it was not allowed to cross-examine.
33.We note that the KECOBO was represented by two (2) counsels who were present at the hearing where they made an application to urge the appeal by written submissions, and voided their right to lead viva voce evidence. Also, we note that despite the two (2) learned counsels being present, none of them sought to cross-examine the Appellant’s witness nor challenge any aspect of the statement or any of the documents. We have not seen any challenge on any item on the statement nor any document. It is therefore the Tribunal’s respectful finding that the objection is an afterthought, and disingenuous.
34.In disallowing both limbs of KECOBO’s objection, we place reliance on the erudite ratio of the High Court (the Hon. Mativo, J as he then was) in Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR,
35.In the interest of justice, and in seeking to secure a full and informed determination of the instant dispute, we do not find merit in KECOBO’s objection and we dismiss this objection.
36.In any event, we cite with concurrence the two decisions referenced in the PAVRISK’s submissions i.e. Microsoft Corporation v Mitsumi Computer Garage Ltd & Another [2001] KLR 470 and Raila Odinga & Others v IEBC & 3 Others [2013] eKLR, asserting the Tribunal’s higher duty to administer justice, in as far as possible to allow for determination of disputes on their substance.
II. Whether KECOBO acted within the law in resolving to appoint and/or license PAVRISK as the sole Collective Management Organization (CMO) in Kenya under certificate of renewal dated 7th June, 2024?
37.KECOBO is established by Section 3 of the Copyright Act No. 12 of 2001 with the mandate of licensing and supervising the activities of Collective Management Societies (CMO’s) under Section 5(b) of the Copyright Act, No. 12 of 2001 and the power extends to allowing and/or rejecting applications submitted to it.
38.Section 46 (2) of the Copyright Act, No. 12 of 2001 empowers KECOBO to license one (1) CMO to manage all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice and it states:Section 46 (2) of the Copyright Act states:
39.We would, as a preliminary, agree with the Respondents (KECOBO and PAVRISK) on their submission that indeed the law does confer upon KECOBO, the authority to license a single multi- rights CMO. This authority must however be shown to have been exercised within the law, which enquiry falls within the Tribunal’s mandate.
40.As a further preliminary, we note that KECOBO in its press statement of 6th June 2024 highlighted the reason for electing to license a singular CMO for the musical sector and audio-visual work (as they are by law entitled), as being to cure wrangles as between the licensed CMOs and ease collection and distribution of royalties ensuring greater return for rights holders. This premise is laudable though being communicated to the affected parties at the juncture of communicating the impugned decision. KECOBO in its letter of 10th June 2024 addressed to KAMP, observes that KECOBO has a policy on a unified framework for collective management of rights - the policy does not seem to have been publicised or notified to the CMOs looking at KAMP’s submission. In any event, the said policy was not drawn to the Tribunal’s attention. We would agree on the adoption of initiatives by the regulator - KECOBO, that would reduce administration and operational costs, consequently increasing the take home for the rights holders erstwhile easing the engagement with licensees
41.On the 10th day of April 2024, KECOBO published in the local dailies a public notice for invitation of applications for registration as CMOs pursuant to Section 46 (2&4) of the Copyright Act 2001 and Regulation 3(1), 5(1&3) of the Copyright (Collective Management) Regulations 2020. The applications were to be submitted no later than 24th April, 2024 before 5.00 pm.
42.The following five applicants responded to the invitation and applied to be considered for licensing as CMOs for various rights:a.Music Copyright Society of Kenya (MCSK);b.Film Makers Rights Achievers of Kenya (FRAK);c.Kenya Association of Music Producers (KAMP);d.Performing and Audio-Visual Rights Society of Kenya (PAVRISK);e.Collective Management Services (CMS)
43.On 30th April 2024, KECOBO published the list of applicants and invited interested parties to submit written representations on the suitability of the applicants to be licensed as CMOs in compliance with Regulation 11(2)c of the Copyright (Collective Management) Regulations, 2020. KECOBO received over 4,000 written representations in response from the public comprised of right holders, users of copyright works, and the general Public.
44.On 21st May 2024, KECOBO invited members of the public for a public hearing to receive oral views on the suitability of the applicants to be Licensed as CMOs in compliance with Regulation 11(2)d of the copyright (Collective Management) Regulations, 2020.
45.On the 28th June 2024, KECOBO convened the public hearing and received oral views from the general public on the suitability of the applicants to be licensed as CMOs in compliance with Regulation 11(2)d of the Copyright (Collective Management) Regulations 2O2O.
46.KECOBO vide a press statement issued on 6th June 2024 pleaded that after considering all the applications both written and oral public comments together with any further information or clarification, KECOBO licensed PAVRISK to operate as a CMO after meeting the licensing conditions. The other applicants did not meet the licensing conditions anchored in law as per KECOBO.
47.KECOBO notified all the applicants including KAMP of the outcome of its decision as required under Reg 11(2)e of the Copyright (Collective Management) Regulations. 2020.
48.KECOBO submits that the decision to licence one (1) CMO was made following due process and in accordance with the Copyright Act, No 12 of 2001, and the Copyright (Collective Management) Regulations 2020. However, KECOBO who had invited companies with requisite competence to apply for registration as CMOs failed to justify the issuance of a solitary licence to the PAVRISK and did not communicate the reasons for denying other CMOs licence renewals.
49.KAMP submitted that by their admission under paragraph 4 of its’ Replying Affidavit, that PAVRISK applied for REGISTRATION of a new CMO under Application Form CMO 01, which is meant to have them registered as a new CMO. However, PAVRSIK, by its own admission under paragraph 8 of its Replying Affidavit admits to having been issued with a Certificate of Renewal of Registration on 7th June 2024. This is irregular for PAVRISK to apply for registration of a new CMO under the Form CMO 01 only to be issued with a certificate for RENEWAL of registration of a CMO, which PAVRISK did not apply for. Applications for RENEWAL of a CMO license are made under FORM CMO 03 and NOT form CMO 01. These requirements are provided for under Regulations 3(1) and 5(1) & (6).
50.We note that KECOBO has not sought to explain the issuance of the Certificate of Renewal, to PAVRISK as being inadvertent or in error; and that the same must therefore be viewed as being conscientiously issued. We do not think and we do not find that this was regular and/or lawful for the reason that the criteria pre-grant of a renewal and/or fresh registration would vary one from the other. For instance under Reg 3(1)(c),(d)&(g) of the Copyright (CM) Regulations the law contemplates existing operations for preceding years, and would certainly be inapplicable for a fresh registration. This concern is further justified especially where, as has been urged by the Appellant herein, KECOBO would need to satisfy itself for instance that the newly registered CMO has capacity to collect and distribute the royalties to its members.
51.In the Supreme Court of Kenya’s decision in Alfred Mutua & 2 others vs. Wavinya Ndeti & anor (Petition of Appeal No. 11 of 2018 as Consolidated with Petition No. 14 of 2018) in paragraphs 69 and 70, the Supreme Court noted as follows:(69)In the light of the provisions of Section 72 of the Interpretation and General Provisions Act and Section 26 of the Statutory Instruments Act, and in the absence of any challenge to the results posited on it, even if Regulation 87(2)(b)(iii) were not ultra vires, we agree with counsel for the appellants that the variation on Form 37C in this case was minor and inconsequential.(70)Section 72 of the Interpretation and General Provisions Act and Section 26(2) of the Statutory Instruments Act, 2013, provide that “an instrument or document … shall not be void by reason of a deviation” from the prescribed form if the deviation “… does not affect the substance of the instrument or document thereof or … is not calculated to mislead.” The Court of Appeal dismissed the appellants’ submission that the deviation on the impugned Form 37C was a matter of mere form and held that “[f]orms are an integral part of an election and an election outcome will depend largely on the information contained in the forms used in the process.” Holding the view that Regulation 87(2)(b)(iii) requiring a column with results from polling stations is a mandatory provision, at paragraph 110 of its judgment, the Court of Appeal concluded that “…the election results declared by the county returning officer for the position of governor Machakos County failed the constitutional test of verifiability and the declaration made by him that the 3rd respondent was duly elected had no legal basis. Consequently, the learned Judge erred in holding that that election was conducted in accordance with the constitutional principles under Articles 81 and 86 of the Constitution.”
52.KAMP submitted that in the absence of an evaluation report that is supposed to be provided for by KECOBO pursuant to Regulation 4(2) of the Copyright (Collective Management) Regulations 2020, one would rightly be led to believe that the Respondents (KECOBO and PAVRISK) colluded in the illegality of awarding PAVRISK with a certificate for which they did not apply for. Whereas we do not agree that necessarily absence of evidence (in the nature of the evaluation report), is evidence of the absence of proper evaluation, the evidential burden shifted to KECOBO the moment KAMP discharged its burden by laying the basis that it sought the information and the same was not availed. Nothing would have been easier for KECOBO to avail this information, constraining the Tribunal to draw an adverse inference from the omission.
53.Arbitrariness and failure to adhere to the law lead to illegality when viewed as a whole in relation to KAMP’s and MCSK’s legitimate expectations.
54.KAMP and MCSK have had licences granted by KECOBO over many years cumulatively. In the event of a refusal, the onus shifts to KECOBO to adduce evidence to support the refusal. This Honourable Tribunal has noted that such evidence has not been submitted.
55.The Tribunal does not have the benefit of a single submission of the 4000 memoranda received by KECOBO, nor does it have a record of any of the views emanating from the public hearing as public participation in the licensing exercise. This denies the Tribunal the opportunity and ability to determine the reasons behind the decision to award the license in issue and the refusal to grant the licenses applied for.
III. Whether the decision by KECOBO to appoint one (1) CMO to manage all relevant copyright owners or for such classes of relevant copyright owners is arbitrary and contravenes Articles 40 of the Constitution:
56.KECOBO invited applicants to apply for CMO licences and all the parties herein applied for licences to collect and distribute revenue for their members.
57.MCSK submits that the right to property and in particular, the protection of intellectual property rights is protected by the constitution of Kenya 2010 in which Article 40 (5) states that:
58.MSCK pleads that the decision by KECOBO is unilateral, and irregular and excludes MCSK, effectively deregistering it. KECOBO failed to justify the issuance of a solitary license to PAVRISK and did not communicate the reasons for denying other CMOs licence renewals.
59.MCSK also submitted that the issuance of a solitary CMO licence to PAVRISK was unlawful and procedurally improper under the Copyright Act specifically Section 46 (5) which provides:
60.KAMP and MCSK have pleaded that the decision by KECOBO violates their right to protection of property under Article 40 (5) of the Constitution. On the basis of Salim Seif Ambunya Andanje & Another vs. Alex Jepkoech Yano & Another (2019) eKLR, the Respondents submit that ‘…. in order to protect the right to property, a party must establish a proprietary right or interest in land as the Constitution does not itself create these rights or interests.’
61.In determining whether the decision by KECOBO was unilateral and arbitrary, we place reliance on the determination by the Court of Appeal in Malindi in Civil Appeal 56 of 2014 Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR where the Couret made reference to the Black’s Law Dictionary 8th Edition that defined arbitrariness in the following manner: -
62.Similarly, the High Court in Civil Suit No. 3 of 2006 Kasimu Sharifu Mohamed vs. Timbi Limited [2011] eKLR referred to Oxford Advanced Learner’s Dictionary A. S. Horby Sixth Edition Edited by Sally Wehmeiner which defines the term ‘arbitrary in the following way: -
63.The Supreme Court of China in Sharma Transport vs. Government of A. Palso (2002) 2 SCC 188 had the occasion to interrogate the meaning and import of the term ‘arbitrarily’. The Court observed as follows: -
64.The term ‘arbitrariness’ had earlier on been defined by the Court (Supreme Court of China) in Shrilekha Vidyarthi vs. State of U.P (1991) 1 SCC 212 when it comprehensively observed as follows;
65.The Tribunal is well guided by the authority in SGS Kenya Limited v Energy Regulatory Commission & 2 Others, (2020) eKLR in which Justices Ibrahim, Ojwang, Wanjala, Njoki Ndungu and Lenaola, SC.JJ held at paragraphs 41 - 44 as follows;(41)So we turn to the single issue before us: are the Tribunals bound by the doctrine of stare decisis? The petitioner has contended that the Review Board failed to follow its own decision in Avante, without any explanation. According to the petitioners, stare decisis applies to quasi-judicial tribunals, to the intent that there be uniformity/consistency, predictability, and certainty in law, in general terms. The 1st Respondent, quite to the contrary, has argued that tribunals are not bound by their previous decisions such being only persuasive; and that each tribunal-task is to be determined on the basis of the facts before it.(42)From the two contending propositions, it emerges, in our view, that tribunals, in their primary category, are specialized bodies charged with programming and regulatory tasks of the socio-economic, administrative and operational domains. Membership in such tribunals generally possess the essential skills required for the specific tasks in view. The Public Procurement Administrative Review Board falls within this category. It is endowed with requisite experience from its membership, and has access to relevant information and expertise, to enable it to dispose of matters related to procurement. The question is: whether it is bound by its previous decision, as it takes decisions on different matters lately coming up.(43)Such a variegated range of implementation scenarios, it is apparent to us, calls for flexibility in the regulatory scheme. In principle, matters on the agenda of an administrative tribunal will merit determination on the basis of the claims of each case, and will depend on the special factual dynamics. The relevant factors of materiality, and of urgency, will require individualised response in many cases: and in these circumstances, a strict application of standard rules of procedure or evidence may negate the fundamental policy-object. On this account, the specialized tribunal should have the capacity to identify relevant factors of merit; be able to apply pertinent skills; and have the liberty to prescribe solutions, depending on the facts of each case. Such a tribunal should fully take into account any factors of change, in relation to different cases occurring at different times: without being bound by some particular determination of the past. EMPHASIS SUPPLIED.
66.We would agree with KECOBO, that administrative decision-makers should have significant flexibility, in responding to changes that affect the subject matter before them. Matters before an administrative tribunal should be determined on a case-to-case basis, depending on the facts in place.”
67.As regards the communication of the decisions as taken by KECOBO in declining KAMP’s application for a License, it was bound to comply with section 4 of the Fair Administrative Action Act, 2015 which provides as follows:
68.This Honourable Tribunal notes that the above-mentioned section of the law was not complied with by KECOBO as analysed above.
69.Flowing from the preceding discussion, we further note that PAVRISK submitted that KAMP did not satisfy the statutory requirement of granting a multi-right certificate hence it has not properly invoked the jurisdiction of the Honourable Tribunal and that KAMP’s prayers as sought would be inviting the Honourable Tribunal to assume/depart from its jurisdiction as provided under Section 48 (4) of the Copyright Act 2001 and have the Honourable Tribunal then assume the role of KECOBO under the provisions of Section 46 (2) (5) and (9) of the Copyright Act.
70.On the issue of this Hon Tribunal’s jurisdiction, in our decision in Brian Abudu Shikhuyu v The Standard Newspaper Group PLC, Tribunal Case No E001 of 2023, dated and delivered on 19th July, 2023 at para 18(i)to(v) thereof we discussed in great detail the jurisdiction of the Hon Tribunal, as prescribed by the Copyright Act, 2001 (as amended).“The following are the instances where the Tribunal may assume and exercise its jurisdiction as provided under the Act:i.Under Section 21(1), Copyright Act,ii.Under Section 48(4)(b), Copyright Act,The Copyright Tribunal shall have jurisdiction to hear and determine an appeal against:
- KECOBO's refusal to grant a certificate of registration to a collective management organization (CMO);
- The imposition of unreasonable terms or conditions by the KECOBO for the grant of a certificate of registration;
- An unreasonable refusal by a CMO to grant a license in respect of a copyrighted work; and,
- The imposition of unreasonable terms or conditions by a CMO for the grant of a license in respect of a copyrighted work.
71.In line with the above provisions, we find that this Honourable Tribunal does have jurisdiction to hear and determine the matter. Having reviewed the pleadings and documents adduced before us, we further state as follows:
72.From the bundle of documents submitted to KECOBO in their application process, vis-à-vis the Letter dated 7th June, 2024 and notified to the KAMP on 10th June, 2024 we are persuaded to find that KAMP adequately responded to the requests for clarification by KECOBO viz:i.On transition to a multi-right CMO, KAMP vide letter dated 24th April, 2024, and the excerpt of the Board Resolution of 15th April, 2024 at page 3 of Application and the distribution rules at page 7 and 8 of the Application;ii.On Interim measures especially around definition of member, KAMP references amendments to its MemArts under Clause 3.1.1.2 and 3.1.6(a), to address the concern;iii.On application not aligning with KECOBO’s policy on unified framework, such failure to itemise the manner of non-compliance to enable a response, if at all;iv.On lack of clarity on collection and distribution of royalties in quarter one, 2024, KAMP vide letters of 24th April, 2024 at page 7 and 8 and the other dated 15th May, 2024 offer detailed explanations on this; and,v.On absence explanation for co-opted director who had resigned, KAMP explained that the subject record concern period when he Mr Frank Mwiti was a director, and infact at Annex 4, of KAMP’s documents, the said document clearly reads “names and qualifications of directors in 2023”
73.We do find KECOBO’s disregard of this response as lawfully in light of Section 7(2)(f),(i),(l)&(k), Fair Administrative Actions Act read with Articles 27(10&(2) and 47 of the Constitution. Conversely, KAMP demonstrated their transparency by allowing this Tribunal to review their Application; the same documents are required and per Section 46 (2) of the Copyright Act and Regulation 5(1) and 5 (2) of the Collective Management Organization Regulations 2020. Additionally, minded of the concern raised by KECOBO around the distribution ratio, KAMP’s distribution ratio for January-April, 2024 reads 17:83, a positive ratio. We would opine therefore that in failing to appoint KAMP as a CMO for producers of sound recording, KECOBO did not act lawfully.
74.On MCSK we note that KECOBO had in finding their application ‘responsive’ proceeded to ask it to pay the annual license fee, as evinced in the letter dated 30th May, 2024. This letter has ever been revoked, it is therefore inexplicable why and how KECOBO did not issue them with a license, or worse why contrary to section 46(5) of the Act KECOBO would license another CMO for similar rights!
IV. Present Status on Collection of Royalties
75.This Tribunal notes with great concern an apparent confusion on the status of the collection of royalties presently which status may negatively affect the rights holders. It is for this reason that the Tribunal had invited submissions from parties with the view of ascertaining that the rights holders' interests are not compromised at all, even as KECOBO and the CMOs resolve the licensing concerns.
76.The Tribunal requested that the Parties to the suit address the Tribunal on the current status of royalty collections in their respective submissions. Only one party, KAMP, addressed this issue in their submissions.
77.KAMP, in their submissions - Paragraph (c) at page 5, stated to this Tribunal that the status is as below:1.In the interim, only the 1st Interested Party has the requisite authority to collect and distribute royalties for its members only. This is in accordance with the interim orders issued by Hon. Lady Justice J.W.W. MONGARE on 4th July 2024 in the HCCOMMPET/E014/202 - Music Copyright Society of Kenya Vs The Board Chairman, Kenya Copyright Board And The Executive Director, Kenya Copyright Board And 2 Others.2.The Appellant does not have orders to collect royalties as of now, hence the Appeal herein.3.The 2nd Respondent does not have the authority to collect and distribute royalties as the 1st Respondent’s decision dated 6th June 2024 was stayed in line with the Order dated 23rd June 2024 which was delivered in the High Court CASE NO. HCJR/E138/2024: Republic And Kenya Association Of Music Producers Limited Vs Kenya Copyright Board And The Board Chairman Kenya Copyright Board And 2 Others by the HON. Justice J. Chigiti.
78.This Tribunal notes that the multiple suits at the High Court, and it is prudent to ensure parties are not abusing the legal process, to the chagrin of its members. In this regard Parties are directed to immediately draw this determination to the High Court’s attention, with the view of taking directions therefrom on the pending suits, and more critically ensuring the rights holders are not prejudiced at all.
79.Whereas this Tribunal on the 28th of June 2024, directed parties to avail the subject orders before the Tribunal, no compliance has been made to date. Therefore, this Tribunal can only take note of the submissions made on this issue of determination and observes that indeed, the Appellant is the only party unable to collect royalties as a Collective Management Organization. This Tribunal observes that this state of affairs is an untidy situation given the current circumstances.
V. Determination:
80.This Honourable Tribunal finds and holds that the Appeal by the Appellant is merited, in challenging the propriety of the impugned decision by KECOBO, and direct as follows:1.The Applications as lodged by KAMP, PAVRISK, and MCSK are hereby remitted for reconsideration and determination, based on the legal requirements under the Copyright Act and Regulations, and all enabling legal provisions to be completed, immediately nonetheless within twenty-one (21) days of this judgment.2.Pending the reconsideration and determination of the Applications as lodged by KAMP, PAVRISK, and MCSK, KECOBO is hereby directed to invoke Section 46(3A) of the Act and immediately issue provisional renewal licenses to the KAMP, PAVRISK and MCSK.3.KECOBO remains at liberty to conclude the process of registering a single Collective Management Organization a new and ensure transparency, accountability, and due regard for the law on procedural matters.4.That all Parties shall bear their own costs to this suit before the Copyright Tribunal.
DELIVERED DATED AND SIGNED AT NAIROBI THIS 16th DAY OF JULY 2024.SIGNED BY:ELIZABETH LENJO-CHAIRPERSONHELEN KIENDE-MEMBERWILFRED LUSI-MEMBERCAROLINE OMAYA-MEMBERJOSEPH KIHANYA-MEMBERObservations by this Tribunal (Obiter Dictum Statement)Governance ConcernsThis Honourable Tribunal has taken notice that KECOBO is a State Corporation, governed by the State Corporations Act, (CAP 446), the State Corporations Advisory Committee (SCAC) Circulars, and Mwongozo, which is the Code of Governance for State Corporations. These documents outline the role of a Chairman and its Board of Directors and how to ensure lawful and effective governance within a State Corporation.KECOBO’s Board Chairman and Directors have demonstrated involvement in administrative matters that are the responsibility of the Secretariat led by its Executive Director whose role is the same as that of a Chief Executive Officer.In the Press statement by KECOBO dated 6th June 2024, signed by the Chairman of the Board of Directors of KECOBO, the Chairman admitted advisory from the government and directive to streamline the sector and cut down the operation costs and also increase the allocation for the artists to at least 70% of the royalties collected. This begs the Honourable Tribunal’s concern whether this was done in the interest of the sector or whether it was purely based on a directive.A letter by KECOBO to the Appellant, dated 7th June 2024, signed under the hand of the Acting Executive Director Mr. George Nyakweba states:This is to inform you that the Board of Directors rejected your application for registration...”In addition, KAMP has shared in its bundle of documents, including Press Statements drafted and published by the KECOBO, one dated 8th May 2024, and another dated 6th July, 2024 under the hand of KECOBO’s Chairman Hon, Joshua Kutuny, which a task that is ordinarily performed by a State Corporation’s Director of Communications.This is conduct that raises questions on matters of governance, compliance and/or interference thereof as envisioned by the State Corporations Act, CAP. 446, and the State Corporations Advisory Committee Guidelines and Circulars as well as Mwongozo Guide and whether the Chairman at KECOBO is an executive chairman.The Tribunal also observes that the Copyright Act uses the word Board to describe both the State Corporation and its Board of Directors constituted under the Act. As a result, any mind perusing the Act may not know when the Act refers to the secretariat or the governance body.As such, this Tribunal opines that a review and perhaps a redraft of the Copyright Act of 2001 is long overdue.Clarity of the Advertisement by the 1st RespondentKECOBO published an Advertisement with the wording “Invitation for application for registration as collective management organizations”.Further, in a letter written to KAMP dated 13th May 2024, KECOBO writes as follows using keywords underlined:as per amended MEMARTS, remains a music rights only CMO....This is therefore to enquire how you intend to manage the rights outside of music under the newapplication in view of your MEMARTS. ”Under the Copyright Act No. 12 of 2001, outside musical works and sound recordings as primary subject matter of connective management, reprographic rights are also administered by way of collective management. As such, this Tribunal also finds the advertisement and communications from the 1st Respondent to be rather ambiguous regarding what rights the applicants of the collective management license were applying for.This Tribunal finds itself asking whether reprographic rights are also included in this process and if not, then the 1st Respondent should employ specificity rather than leave members of the public and parties to make assumptions about their intention.GIVEN UNDER MY HAND AND SEAL OF THIS COURT ON 2024 07-16 19:24:39SIGNED BY: ELIZABETH LENJO (ADMINISTER JUDGEMENTS)THE JUDICIARY OF KENYA.COPYRIGHT TRIBUNALTRIBUNAL