Vic­tory for in­de­pen­dent artists and PRSPs af­ter court rul­ing

The Star (Kenya) - - Politics Ministries / Judiciary -

Artists and Pre­mium Rate Ser­vice Providers scored a ma­jor vic­tory af­ter a judge ruled that a sec­tion of the Copy­right Act is un­con­sti­tu­tional.

Jus­tice Said Chitem­bwe (pic­tured), sit­ting in Malindi, ruled that in­de­pen­dent artists and other pro­duc­ers can­not be com­pelled to join an as­so­ci­a­tion not of their choice.

He ruled that the two com­plainants in the case, Mercy King’oo and Ly­dia Nyiva, can­not be forced to re­ceive their roy­al­ties through Col­lec­tive Man­age­ment Or­gan­i­sa­tion yet they have no deal­ings with it.

“Sec­tion 30A of the Copy­right Act is un­con­sti­tu­tional as it was en­acted with­out pub­lic par­tic­i­pa­tion and it is be­ing ret­ro­spec­tively ap­plied. It also limits artists’ free­dom not to be com­pelled to join an as­so­ci­a­tion of any kind as pro­vided un­der Ar­ti­cle 36 of the Con­sti­tu­tion,” the judge said.

The two artists said they have com­posed sev­eral songs and con­tracted Lib­erty Africa Tech­nolo­gies, a PRSP, to digi­tise and man­age the mu­sic con­tent.

Since 2008, Sa­fari­com has been op­er­at­ing a por­tal called Sk­iza Tunes, used to down­load dig­i­tal mu­sic con­tent by its sub­scribers. The mu­sic is up­loaded in form of caller ring back tones through the por­tal.

Lib­erty would man­age their ex­clu­sive com­po­si­tion, per­for­mance, pro­duc­tion and re­lated artis­tic rights and re­ceive roy­al­ties on their be­half.

All was well un­til Au­gust 2015, when Sa­fari­com signed an agree­ment with the Mu­sic Copy­right So­ci­ety of Kenya and CMOs, bind­ing it­self to chan­nel artists’ roy­al­ties through the CMOs.

They main­tained that they are not mem­bers of CMOs and do not in­tend to join any one of them. The caller ring back tones are in the cat­e­gory of per­for­mance rights, which the CMOs are not al­lowed to han­dle.

The judge sa­iad forc­ing the artists to be­come mem­bers of the CMOs is a vi­o­la­tion of their rights un­der Ar­ti­cle 36 of the Con­sti­tu­tion.

“It is hereby de­clared that the Au­gust 2015 agree­ment be­tween the first re­spon­dent [Sa­fari­com] and the CMOs is ir­reg­u­lar, un­law­ful and in­fringes on the pe­ti­tion­ers’ con­sti­tu­tional rights,” Chitem­bwe said.

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