The Music Copyright Society of Kenya (MCSK) was recently thrown out of the High Court due to a lack of the doctrine of exhaustion. This means the MCSK failed to seek out all the other dispute resolution mechanisms available under the Copyright Act before approaching the Court. In its application, MCSK sought to restrain other licensed collective management organisations (CMO), like the Performing and Audio-Visual Rights Society of Kenya (PAVRISK), from continuing to collect royalties and any monies on behalf of the MCSK. PAVRISK’s collection of royalties was because MCSK had yet to have their licence renewed by KECOBO.

The conflict

The issue arose when the Kenya Copyright Board (KECOBO) did not renew MCSK’s CMO licence application. MCSK also alleged that KECOBO has been issuing licensing rights in favour of three other CMOs for the last seven years to MCSK’s detriment and that of other CMOs. Some of those who have benefited from the licensing include PAVRISK. This then begs the question, who among these bodies should collect royalties?

CMOs in Kenya

KECOBO mandates the licensing and supervision of CMOs’ activities under Section 5(b) of the Copyright Act, No. 12 of 2001. This power extends to allowing and/or rejecting applications submitted to it. Section 46 (2) of the Copyright Act, 2001, empowers KECOBO to license one CMO to manage all relevant copyright owners or for such classes of relevant copyright owners as are specified in the notice.

The Copyright Act of 2001 defines CMOs as organisations approved and authorised by KECOBO to collect and distribute royalties and grant licenses for the use of copyright works or related rights. The licensed CMOs in Kenya include:

• Reproduction Rights Society of Kenya (KOPIKEN) licenses the reproduction of copyright-protected literary materials against payment of fees whenever it is impractical for the rights holders to license and collect fees individually.
•  Kenya Association of Music Producers (KAMP) is licensed to represent the rights and interests of producers of sound recordings, where they collect license fees and distribute royalties among its members.
• Music Copyright Society of Kenya (MCSK) is mandated to collect royalties in public performance and broadcasting on its members’ behalf and distribute the revenue to its members. MCSK’s members comprise authors, composers, and publishers of musical works.
• Performers Rights Society of Kenya (PRiSK) represents performers in musical and dramatic works. It is mandated to manage performers’ rights effectively and efficiently by collecting remuneration on behalf of the rights holders from various users of performers’ works and distributing royalties to the rights holders.

PAVRISK

PAVRISK is a registered CMO under KECOBO. It is licensed to protect intellectual property rights and distribute royalties on audio-visual works that appear on TV, radio and other public places. They also collect royalties levied.  

In the past year, KECOBO has tried merging most CMOs into one entity and subsequently issued a singular (multi-right) license. The CMOs opposed this process because the Board was unclear, and thus, they made their individual applications to the Board.

In June 2024, MCSK’s operational license expired, and KECOBO opted not to renew it. Instead, KECOBO granted the exclusive license to PAVRISK. This decision marked a significant shift, aiming to address inefficiencies and restore trust in royalty collection.

MCSK’s exclusion did not go unchallenged. The organisation filed a case in the High Court, claiming KECOBO’s decision undermined its legitimacy and jeopardised its members’ livelihoods. While MCSK sought interim orders to continue operations, the case’s core issue was whether KECOBO had acted within the law by licensing PAVRISK. Further, MCSK alleges that the unilateral decision by KECOBO 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.

Weaknesses in the system

KECOBO’s role is crucial in ensuring that CMOs operate within the boundaries of the law. This includes distributing royalties fairly and maintaining a high level of accountability. Its decision to grant exclusive licensing to PAVRISK was part of its effort to address longstanding inefficiencies within the copyright management system.

KECOBO has stated that its decision was not arbitrary but based on its assessment of the performance and operational capacity of MCSK and other CMOs. By granting PAVRISK exclusive rights, KECOBO aimed to consolidate authority over certain areas of copyright management, particularly in audio-visual works and public communication. KECOBO argues this will improve the overall functioning of CMOs in Kenya and lead to better outcomes for rights holders.

The ongoing dispute has highlighted some weaknesses in Kenya’s collective management system. As the country’s copyright landscape evolves, there is increasing recognition that the system needs reform to ensure greater transparency, fairness, and efficiency. Potential reforms could include streamlining licensing processes, clearer guidelines on the roles of different CMOs, and improved mechanisms for resolving disputes.

Additionally, KECOBO may need to strengthen its oversight of CMOs to ensure they fulfil their mandates and operate in the best interests of rights holders. Industry stakeholders have called for inclusive discussions involving all CMOs and rights holders, aiming to create a more equitable system that addresses the needs of all parties.

Conclusion

The decision by KECOBO to grant exclusive licensing to PAVRISK marks a pivotal moment in the evolution of copyright administration in the country. The outcome of this case could have significant implications for the future of CMOs, the distribution of royalties, and the rights of creators and performers.

Moving forward, it will be essential for all parties to engage in constructive dialogue to address the systemic issues that have led to this dispute. Through reform and clearer guidelines, Kenya can create a more effective and equitable system for managing copyright and ensuring that all rights holders are fairly compensated for their work.