LEGAL OPINION

1. DATED 1
st
FEBRUARY 2016
TO: WANJIKU A. MBIYU, O.G.W (Ms)
FROM: EMMANUEL KIPKURUI (LEGAL ASSISTANT)
RE: LEGAL OPINION ON THE CLARIFICATION ON THE BODY MANDATED TO COLLECT
PUBLIC MUSIC PERFORMANCE LISENCE FEE

I wish to render my considered legal opinion over this matter as follows.
FACTS
1. Three Collective Management Organizations (CMOs); MCSK (Music Copyright Society of
Kenya), PRISC (Performers Rights Society of Kenya) and KAMP (Kenya Association of
Music Producers) are each claiming to be mandated to collect fees for both sound and
audio visual works performed in public places including Prime Chic Holdings Ltd and
issue licenses thereto on behalf of the Copyright Board under the Copyright Act Cap
130, Laws of Kenya.
2. The Managing Director Prime chic Holdings Ltd. claims that all the three bodies
demand separate payments for the same sound and audio visual works performed in
their restaurants.
3. He also claims that Prime Chic Holdings has been remitting license fees to MCSK to the
satisfaction of the Board and no complaint has ever been lodged against the
restaurant.
4. He is therefore seeking clarification on the body that is mandated to collect the public
performance fees from them, noting that the restaurant does not produce music but
only plays audio and visual music to the public
ISSUES
1. Whether the three CMOs; PRISC,KAMP & MCSK should be allowed to collect fees and
issue licenses and issue licenses for both sound and audio visual works performed in
public places and In particular Prime chic Holdings Ltd.

2. 2. Whether the Copyright Act was followed in approval of the said three bodies or whether
the three bodies were approved as mandatory requirement by the Act
3. Whether it is proper for separate bodies to collect fees and issue licenses to the same
class of rights and category of works separately.


ANALYSIS OF THE ISSUES

1. The Copyrights Act creates a body called Copyright Act Board that is charged with
the responsibility of approving Collective Management Organizations to perform
such duties s the Board may assign.SEC 5(b)of the Act provides that the functions of
the Board shall be to license and supervise the activities of collective management
societies as provided for under the Act.
2. On the issue of receiving and collecting fees for audio and visual sounds in public
place, the following bodies have been approved by the Board to carry out the
function on behalf of the Board.
3. These CMOs have different but related functions each as follows;
i. PRISK is mandated to collect license fees from users who broadcast or
communicate sound recordings and audio visual works in public.
ii. MCSK Grants licenses to users for the broadcast and public performance of
copyright in musical works in its repertoire and distribute royalties to music
publishers and songwriters and composers.
iii. KAMP this society represents the producers of sound recordings.
iv. KAMP and PRISK work together under the banner of KAMP-PRISK and issue
a single license to owners of the premises where sound recordings and audio
visual works are made audible to the public.
4. Section 46(5) of the Copyrights Act states that the Board shall not approve another
collecting society in respect of the same class of rights and category of works if there
exist another collecting society that has been licensed and functions to satisfaction of its
members. Since the restaurant has been dealing with MCSK and there is no
communication to the contrary from the Board as to whether that right has been varied
by the Board to entitle another body to deal with the restaurant
5. It is my humble opinion that Sec. 46(5) of the Act does not allow another body to deal or
purport to deal with the restaurant on the same. In addition the attempt to deal with
the restaurant by the other bodies is not only unprocedural but a clear violation of Sec.
46(5) of the Act. However, you should liaise with the board on the position of the fee
payable as well as the license(s) issuable.

3. 6. It is my humble opinion that since the copyright Act Sec 46(5) is clear that a Collecting
Management Organization that has been duly approved and licensed by the Copyright
Board as a collecting society functions in respect of a specific class of rights and category
of works allocated by the board therefore this section clearly clarifies and dispels this
ambiguity.
7. The above notwithstanding, it is my humble opinion that the Director of the Prime Chic
Holdings should write a letter to the Copyrights Board to find out who among the
licensed collecting society has been mandated to collect fees and issue licenses to their
category of work as a restaurant in respect to sounds and visual works performed in
public places so as to know who among these bodies they should be remitting license
fees to.




EMMANUEL KIPKURUI (LEGAL ASSISTANT)