The High Court in Nairobi has declined to compel the Kenya Copyright Board and the Cabinet Secretary for Gender, Culture and Arts to order mobile service providers to pay musicians directly for their call-back tunes.
In a case filed by the Music Associations Alliance of Kenya (MAAK) Chairman Justus Ngemu and former teacher cum musician, Saul Esikuri, Justice John Chigiti said yesterday Safaricom and Airtel have already been paying the artistes despite there being no regulations or database.
He, however, directed that the board should have a database of all artistes and their work.
Call-back tunes, known as Skiza tunes on Safaricom and Hello tunes on Airtel, typically cost Sh1.50 daily for local and international tunes.
The daily subscription fee allows one to entertain their callers with their chosen tune.
The judge stated that if Safaricom and Airtel were to pay the musicians directly, then there must be a method for identifying them.
He lifted the orders he had initially issued that the two mobile service providers release all the money that had been frozen and continue paying the artistes as was the case before the case was filed.
“ This court notes that the Applicants have been beneficiaries of revenue through an arrangement through the premium rate service providers under Subsection 30(2), albeit without regulations. The Applicants are clearly blowing hot and cold air at the same time,” said Justice Chigiti.
In the case, the two argued that the two telcos had continued paying Premium Rate Service Providers (PRSP), which are companies that offer services, content, or applications that are charged to a mobile phone user instead of musicians directly.
Ngemu and Asikuri said the Gender CS and the board had the powers to implement the law.
However, the two argued that the case should be dismissed as the artistes had admitted that they had met for consultations on how to best implement the law governing payments for call-back tunes on several occasions.
Section 30 C of the Copyright Act No. 12 of 2001 addresses the payment of ring-back tune revenue. This was introduced through the Copyright (Amendment) Act No.14 of 2022, which was passed by Parliament in February 2022 and signed into law by the President in April 2022.
According to the section, an artiste or copyright holder gets 52 per cent, while telcos get 39.5 per cent. The PRSP, on the other hand, have an 8.5 per cent stake for every coin charged the subscriber.
