Court halts MCSK’s royalty collection

The Music Copyright Society of Kenya (MCSK) has been temporarily prohibited from collecting royalties from music users for copyrighted works until a case filed in court, which challenges its method of collecting royalties, is heard and determined.

The action follows a case filed by the Performing and Audio Visual Rights Society of Kenya (PAVRISK) against MCSK, alleging that the defendant has been using a joint venture that has already been terminated to collect royalties.

PAVRISK wants the court to issue orders restraining MCSK, whether by itself, its agents, or servants, from issuing joint KAMP-PRISK-MCSK invoices and licences, or in any other way exploiting its Trademark No. 95006.

The plaintiff asserts that the joint venture KAMP-PRISK-MCSK was terminated in June of this year and is no longer in operation. Therefore, anyone issuing invoices and licences under the defunct joint venture is acting in bad faith.

PAVRISK has urged the court to freeze and restrict MCSK’s Revenue Collection Account Number 5527990048, held at NCBA Bank, Westlands Branch, and to freeze Safaricom’s MPESA Paybill Number 5129000, pending the hearing and determination of the suit.

The plaintiff is also seeking orders compelling the defendant to provide certified statements to the court, detailing all transactions made into MCSK’s Revenue Collection Account Number 5527990048, held at NCBA Bank Kenya PLC, Westlands Branch.

Similarly, PAVRISK wants Safaricom to be ordered to submit to the court certified statements showing all transactions made into MPESA Paybill Number 5129000.

Milimani Court Magistrate Rawlings Liluma Musiega issued orders restraining MCSK from collecting its revenue and using the said joint venture until the motion is heard and determined.

“Pending the hearing and determination of the main suit, this honourable court is pleased to issue temporary order of injunction restraining the defendant whether by itself, its agents or servants from issuing joint KAMP-PRISK-MCSK invoices and licenses, or in any way whatsoever from exploiting the plaintif;s Trademark No. 95006”, Justice Musiega stated.

Justice Musiega also issued orders freezing and restricting MCSK’s Revenue Collection Account Number 5527990048, held at NCBA Bank, Westlands Branch, and Safaricom’s MPESA Paybill Number 5129000, pending the hearing and determination of the suit.

The court has compelled both MCSK and Safaricom to provide certified statements to the court showing all transactions made into MCSK’s Revenue Collection Account Number 5527990048, held at NCBA Bank Kenya PLC, Westlands Branch, and for MPESA Paybill Number 5129000, respectively.

PAVRISK avers that the defendant has been issuing users of copyrighted works with joint KAMP-PRISK-MCSK invoices and licenses in accordance with the Consolidated Tariff. As a result, it has been collecting the full tariff amount into MCSK’s revenue collection account in the name of Music Copyright Society of Kenya Ltd.

In line with the Joint Licensing Operations, the Government published Music Tariffs that provided for a consolidated and unified rate to guide joint licensing. With the Consolidated Tariff in place, it became impossible for an individual Collective Management Organisation (CMO) to independently collect royalties for its specific category of rights.

NCBA Bank PLC and Safaricom have been listed as the 1st and 2nd interested parties, respectively, in the inter partes suit filed by Morris Maina & Company Advocates on behalf of PAVRISK.

PAVRISK stated that the joint venture collapsed upon the expiry of the provisional licences issued to MCSK, the Kenya Association of Music Producers of Kenya (KAMP), and the Performers’ Rights Society of Kenya (PRISK), which has now been renamed PAVRISK, on 8th May 2024.

The Kenya Copyright Board registered the plaintiff as the sole CMO on 7th June 2024 and issued the company a unified licence for all rights to represent authors, composers, publishers, arrangers, producers, and performers of sound recordings and audiovisual works for a period of one year.

Following this decision, the plaintiff stated that it terminated the Joint Operations via a letter dated 10th June 2024, notifying KAMP and MCSK of its exit from the joint arrangement, as it was now authorised to collect royalties on behalf of all rights holders, as per the licence granted on 7th June 2024.

“The defendant’s actions of collecting royalties for all rights, under the misrepresentation that it is doing so under the umbrella of the Joint KAMP-PRISK-MCSK agreement, are without the plaintiff’s knowledge or authority and in disregard of the termination of joint operations as communicated to it via the letter of 10th June 2024, which was received on 13th June 2024,” the plaintiff added.

In the suit, PAVRISK has urged the court to issue orders compelling MCSK to transfer to the company the sum equivalent to 24.5% of the cumulative deposits made into MCSK’s revenue collection account number 5527990048, held at NCBA Bank Kenya PLC, Westlands Branch, since 18th June 2024 to date.

It also seeks orders for Safaricom to transfer to the CMO the sum equivalent to 24.5% of the cumulative deposits made in Safaricom MPESA Paybill Number 5129000 since 18th June 2024 to date.

Musiega ruled that the matter be mentioned on 28th January 2025 for further directions and ordered the plaintiff to serve parties that failed to attend court despite having been served with a fresh motion of notice.

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