Mercy Munee Kingoo & Lydia Nyiva Kingai v Safaricom Limited & Attorney General
Mercy Munee Kingoo & Another V Safaricom Limited & Another  eKLR
Section 30A of the Copyright Act Declared Unconstitutional for Limiting Artists’ Rights and Freedom of Association
Mercy Munee Kingoo & another vs. Safaricom Limited and 3 Others
Constitutional Petition 5 of 2016
High Court at Malindi
S J Chitembwe, J
November 3, 2016
Reported by Emma Kinya Mwobobia & Ian Kiptoo
Constitutional Law-national principles and values-public participation in the law making process-where a statute law Miscellaneous Act introduced substantial issues-whether section 30A to the Copyright Act, as amended by the Statute Law (Miscellaneous Amendment) Act 2012, was unconstitutional for not being subjected to public participation-Constitution of Kenya, 2010, articles 10 and 188.
Constitutional Law-legality of statutes-legality of a statute in the Copyright Act requiring artists to belong to a CMO to receive their remuneration-whether section 30 of the Copyright Act was unlawful for requiring that artists had to belong to a CMO for them to receive their remuneration-Copyright Act, section 30A.
Statutes-interpretation of statutes-constitutionality of section 30A of the Copyright Act-where the statute purported to limit artists’ rights and freedom of association-Constitutionality of section 30A of the Copyright Act as it limited the Petitioners right to association-Constitution of Kenya, 2010, articles 36; Copyright Act CAP 130, section 30A.
Civil Practice and Procedure-res judicata-where a matter had already been heard and determined-where the matter in regards to constitutionality of section 30A had been heard and determined-whether the matter before the Court in regards to the constitutionality of section 30A of the Copyright Act was res judicata having been heard and determined in Petition 317 of 2015.
The Petitioners were composers, producers and performing artists of musical and audio-visual works who had contracted Premium Rate Service Providers (PRSPs) to digitize their musical work and downloads in the 1st Respondent’s Skiza Tunes Portal. In December, 2012 parliament passed the Statute Law (Miscellaneous Amendments) Act which introduced section 30A into the Copyright Act.
The Petitioners stated that they were not members of the Collective Management Organizations (CMOs) and did not intend to join any one of them and that the 1st Respondent’s act of entering into an agreement with third parties was forcing the artists to become members of the CMOs and was a violation of their rights provided under article 36 of the Constitution of Kenya, 2010 (Constitution). In addition, the Petitioners stated that the said amendment was not subjected to public participation in total contravention of article 118 of the Constitution.
On the other hand, the Respondents contended that section 30 was mandatory and all payments had to be made to the CMOs and no one else. Furthermore, the Respondents contended that the Petition was res judicata as the issues being raised were determined in Nairobi High Court Constitutional Petition 317 of 2015 in which the Court held that:
a) Section 30A of the Copyright Act did not violate the Petitioners’ freedom of association. That was in light of the fact that there was no requirement for any artist to become a member of a CMO in order to receive remuneration for the use of copyrighted works; and
b) Section 30A of the Copyright Act did not violate the intellectual property rights of petitioners. Its only requirement was that there would be collective management organizations which collected royalties for use of copyrighted works and distribute such royalties to the copyright holders.
i.Whether the matter before the Court in regards to the constitutionality of section 30A of the Copyright Act was res judicata having been heard and determined in Petition 317 of 2015.
ii.Whether section 30A to the Copyright Act, as amended by the Statute Law (Miscellaneous Amendment) Act 2012, was unconstitutional for not being subjected to public participation.
iii.Whether the Petitioners had to be members of a CMO for them to receive their remuneration.
iv.Whether section 30A of the Copyright Act was unconstitutional as it limited the Petitioners freedom of association under article 36 of the Constitution.
Relevant Provisions of the Law
Constitution of Kenya, 2010
Freedom of association
(1)Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind.
(2)A person shall not be compelled to join an association of any kind.
(3)Any legislation that requires registration of an association of any kind shall provide that—
(a)registration may not be withheld or withdrawn unreasonably; and
(b)there shall be a right to have a fair hearing before a registration is cancelled.
Copyright Act Chapter 130
Right to equitable remuneration for use of sound recordings and audio visual works
(1)If a sound recording is published for commercial purposes or a reproduction of such recording is used directly for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer and the producer of the sound recording shall be paid by the user through the respective collective management organization, and the remuneration shall be shared equally between the producer of the sound recording and the performer.
(2)If a fixation of a performance is published for commercial purposes or a reproduction of a fixation of a performance is used for broadcasting or other communication to the public, or is publicly performed, a single equitable remuneration for the performer shall be paid by the user to the collective management organization.
(3)The right of equitable remuneration under this section shall subsist from the date of publication of the sound recording or fixed performance until the end of the fiftieth calendar year following the year of publication, provided the sound recording or fixed performance is still protected under section 28 and 30.
(4)For the purposes of this section, sound recordings and fixations of performances that have been made available by wire or wireless means in such a way that members of the public may access them from a place and a time individually chosen by them shall be considered as if they have been published for commercial purposes.
1. In regards to section 30A of the Copyright Act, the cardinal rule for construction of statute is that a statute should be construed according to the intention expressed in the statute itself. It is one of the linguistic canons applicable to construction of legislation that an Act is to be read as a whole, so that an enactment within it is to be treated not as standing alone but as falling to be interpreted in its context as part of the Act. The essence of construction as a whole is that it enables the interpreter to perceive that a proposition in one part of the Act is by implication modified by another provision elsewhere in the Act.
2.Section 7 of the Civil Procedure Act prohibited courts from hearing disputes which had already been determined by other courts. Once a pronouncement had been made on an issue, then the same ought not to have been the subject of litigation before another court and between the same parties. The final determination in Petition 317 of 2015 did not make any pronouncement on the constitutionality of section 30A of the Copyright Act. The Court had held that section 30A of the Copyright Act did not violate the Petitioners’ rights. It could well have been concluded that it was determined that section 30A was not unconstitutional. However, that determination was in relation to the parties to that petition as well as the core issue as to whether the section violated freedom of association under article 36 of the constitution. That issue was determined in Petition 317 of 2015.
3.Estoppel by res judicata, or estoppel by record, is a manifestation of the principle that judicial decisions once made must be accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is in the public interest for there to be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted as providing a stable basis for future conduct.
4.The Latin word res judicata simply means a thing judicially determined. They may apply to the claim as a whole (usually referred to as cause of action estoppel), or may refer to one or more specific issues which the Court was required to decide in the course of reaching its decision on the matter before it (what is generally referred to as issue estoppel.
5.Where a dispute involved interpretation of a statutory provision which was alleged to be in contravention of the Constitution, similar cases could be brought to court but based on a different dimension. A petitioner could say that a certain provision of a statute was unconstitutional as it violated a certain article of the Constitution. That dispute could be determined but another party was not barred from asking the same court to declare the same statutory provisions as unconstitutional as it was passed without public participation or that it violated another article of the Constitution.
6. Res judicata could not be applied generally in relation to interpretation of the Constitution or a statute. There was also the simple fact that one judge could declare a certain statutory provision as unconstitutional while another judge declared the same provision as constitutional. In such a case, res judicata could not apply.
7. The Petitioners were not parties to Petition 317 of 2015. The contention that they were represented by their PRSP – Liberty Africa Technologies Ltd – could not stand. That party litigated on the position of a Premium Rate Service Provider while the Petitioners were artists. The freedom of association of the PRSPs was different from that of the artists. Therefore, the Petition was not res judicata. The Petitioners could challenge the provisions of section 30A on the grounds that it was passed without public participation or that it violated their constitutional rights. They could also challenge the section on the ground that its implementation was leading to infringement of their constitutional rights.
8.Section 30A was brought in through the Statute Law (Miscellaneous Amendments) Act, 2012. The Act covered several other statutes and its preamble indicated that it was an act of parliament to make minor amendments to statute law. The amendments on the Copyright Act related to section 15 that was deleted, section 30 had some amendments, section 30A was introduced, and sections 36 and 42 were also amended.
9. Ordinarily, a Statute Law (Miscellaneous Amendments) Act only dealt with minor amendments to certain statutes. Such amendments involved rectification of drafting mistakes or deleting provisions which had been affected by other new legislation among others. Therefore there would be no need for extensive public participation if the intention was to do minor amendments as the same Act suggested. However, where the new introductions altered the original Act to a great extent and introduced new substantive provisions that were not in place before, then such amendments ought to have been subjected to public participation.
10. Parliament had made drastic amendments to old statutes through the avenue of Statute Law (Miscellaneous Amendments) Act. A case in point was the amendment of the Judicial Service Act and introduction of a requirement that three names for the position of the Chief Justice and Deputy Chief Justice be forwarded to the president for him to appoint one nominee for each respective position in place of the original position which required that only one name be forwarded by the Judicial Service Commission. The amendments were done through the Statute Law (Miscellaneous Amendments) Act, 2015. The same Act introduced drastic changes to the Employment and Labour Relations Act, the Environment and Land Court Act, the High Court (Organization and Management) Act and the Magistrates’ Court Act. There could have been some form of public participation while passing the Statute Law (Miscellaneous Amendments) Acts, but a great deal of consultation was required.
11. The issue of public participation had been litigated upon in several forums. Unfortunately for the case, the report of the relevant parliamentary committee was not brought to the attention of the Court for it to know what transpired when the bill was referred to the committee. The Court could make a presumption that the committee called for memorandums and comments in relation to the proposed amendments on all the affected statutes. Article 10(2) (a) on National Values and Principles of Governance called for participation of Kenyans in all spheres of life. Similarly, article 118 called for parliament to conduct its business and the business of its committees in an open manner and facilitate public participation.
12. It was not expected that all Kenyans would participate in the enactment of legislation. Indeed, Kenya’s representative democracy whereby each constituency elected a member of parliament each election year to represent the residents of a particular constituency implied that Kenyans were fully represented in the legislative process. However, by enacting the 2010 Constitution, Kenyans still felt that they ought to have been engaged once again when parliament was conducting its affairs. That was why article 118 was placed in the Constitution.
13. Article 118 called for engagement with the stakeholders of each particular sector affected by a specific legislation whenever such legislation was amended or where a new legislation was enacted. The stakeholders affected by the Copyright Act included all Kenyans generally and in particular the producers, performers, artists, mobile phone operators, broadcasting corporations among others. There was no evidence that the stakeholders were engaged before the introduction of section 30A of the Copyright Act. The section was not a minor Amendment. On the timelines taken to pass the bill, it would be noted that there was no time for public participation. The committee only had three days from December 19, 2012 to December 21, 2012 to present the bill back to parliament. That period was not sufficient to engage the stakeholders.
14. The position prior to the enactment of section 30A seemed to be that each artist was represented by a PSRP. Those providers were not licensed as CMOs. Section 5 of the Copyright Act provided for functions of the Kenya Copyright Board, KCOBO. One of its functions under section 6(b) was to license and supervise the activities of Collective Management Societies as provided for under the Act.
15. Section 46(5) of the Act was clear that only one collecting society could be licensed in respect of the same class of rights or category of works. Section 30(3) recognized a performer’s right to enter into a binding authorization and appoint a representative. Section 30A called for payment to producers and performers of the single equitable remuneration through the respective CMOs and the remuneration would be paid by the user to the CMO. In addition, the remuneration would be shared equally between the producer of the sound recording and the performer.
16. On the issue of public participation before the introduction of section 30A, there was no public participation. The stakeholders were not engaged. The section did not introduce minor amendments to the Act and ought to have been subjected to public participation. The assumption was that the amendments on the affected statutes were minor. However, drastic changes were made to the Copyright Act.
17. According to the Petitioners, they were not involved in the change of paying point from the PRSPs to the CMOs. There was no requirement for any artist to become a member of a CMO in order to receive remuneration for the use of copyright works. Section 30A did not make it mandatory for the 1st Respondent to channel the royalties only through the CMOs. Thus, the argument that it would be difficult to deal with each individual artist was not tenable as the 1st Respondent had been paying dividends to its shareholders through their mobile phones.
18. The 1st Respondent had over twenty million subscribers and was able to manage all their affairs which were not limited to phone calls but included m-pesa transactions (mobile money transfer), purchase of bundles, accumulation of points through the use of phones, use of internet and crediting airtime. The 1st Respondent’s technology was quite advanced and had been of great service to Kenya. Between 2013 and 2015, the 1st Respondent had been paying the royalties through the PRSPs and had not been charged in curt for violating the law.
19.The 1st Respondent was a party in Nairobi Petition Number 317 of 2015. The court held that it was not mandatory for the artists and producers to be members of the CMOs for them to receive their remuneration for the use of their copyright works. The effect of that was that the CMOs could only pay those registered with them. Since the PRSPs were also legally licensed, they could still continue to receive the royalties of those artists who were contracted with them. PRSPs were not amorphous or illegal organizations.
20. Section 30A of the Copyright Act did not illegalize payment of royalties to any person other than CMOs. If that was the case, then the section would be violating the Petitioners’ right of freedom of association as well as freedom not to be compelled to join any kind of association. If all royalties were to be paid through CMOs, the effect would be that an artist could not receive his/her royalties until he/she joined one of the three CMOs. The dispute was about payment point and each artist ought to have been at liberty to be paid through the point of his choice. Receiving royalties for an artist who was not your member was unconstitutional. The manner in which section 30A of the Copyright Act was implemented was unconstitutional.
21. Artists who already had existing contracts with their PRSPs were being called upon to abandon those agreements and join any one of the three CMOs. The right to choose where one’s royalties were to be paid was being infringed.
22. From the stand taken by the 1st Respondent that the Petitioners would not get their royalties until the same was paid through the CMOs. It was not clear whether any fees or charges were levied by the CMOs. Although they were described as non-profit making organizations, that did not mean that they were charitable institutions. They were private bodies. Therefore, there would be no need of them receiving the royalties and thereafter passing the payment over to the artists without any fee. If that was the case, which was not, then the royalties ought to have been paid directly to the artists without any involvement of the CMOs.
23. The Petitioners had established a prima facie case. They were not consulted when section 30A of the Copyright Act was passed. Their pre-existing contracts were being trampled upon. It was evident that the 1st Respondent was not the only user of the Petitioners’ works. There were other mobile phone operators. There were also television and radio stations that could have been using the Petitioners’ works. Some of the users might not have been using the digitized ring tones but by the end of the day royalties had to be paid. Those royalties were not paid through the three CMOs.
24. The Petitioners were involved in an industry which involved the youth as well as well established artists. It took time, money and hard work to produce the artistic works. The law ought not to have way-layed the artists at the very end of the process and order them to receive their royalties through three Collective Management Organizations. Such an arrangement was tantamount to obstructing an employee or anyone not to get his salary or payment through any other bank other than the one preferred by the employer or paying body. That was unconstitutional.
25.The Kenyan Constitution had pumped fresh air and freedom into the Kenyan society. No Kenyan ought to have his options of how he would like his payments to be made after his/her hard work limited to a specific paying point. That amounted to tethering one’s freedom of association and right to choose where to be paid and limiting such fundamental rights and freedoms to only three CMOs was unconstitutional. That could not be allowed in a democracy like Kenya’s based on equality, human dignity and the rule of law.
26.The extent that section 30A of the Copyright Act limited the artists’ right to choose how their royalties were to be paid was unconstitutional as its effect was to limit the Petitioners’ freedom of association. Furthermore, taking into account the fact that section 30A of the Copyright Act was enacted without public participation and its effect was to be applied retrospectively without regard to existing arrangements between artists and their contracted PRSPs, that section was unconstitutional.
Petition allowed: Each party to bear its own costs
a) A permanent injunction restraining the 1st Respondent from remitting artists’ royalties from the Skiza Tunes Portal to CMOs;
b) Section 30A of the Copyright Act was unconstitutional.
c) A declaration that the august 2015 agreement between the 1st Respondent and the CMOs was irregular, unlawful and infringed on the Petitioners’ constitutional rights