The High Court has restrained the Music Copyright Society of Kenya (MCSK) from collecting royalties pending its appeal against the Kenya Copyright Board (KECOBO)’s decision to withhold its licence.
In a ruling delivered by Justice Linus Kassan, the court also barred the society from carrying out the statutory functions of a Collective Management Organisation (CMO).
Royalties are payments made to copyright owners when their creative works—such as songs, music recordings, or other copyrighted material—are used commercially.
CMO refers to an organisation licensed to manage copyright and related rights on behalf of creators. It typically licenses users, collects royalties, and distributes the money to copyright holders.
Justice Kassan issued the order after considering three interlocutory applications arising from MCSK’s challenge to KECOBO’s decision to deny it a licence for the licensing period that began on November 5, 2025.
Court papers show that the society had asked the court to allow it to continue collecting and distributing royalties on behalf of its members while its appeal is heard and determined.
However, KECOBO filed a separate application seeking to restrain the society from collecting or levying royalties and licence fees from users of copyrighted works.
The court allowed the board’s application, finding that MCSK currently does not have a valid licence authorising it to undertake the statutory functions of a CMO.
“Pending the hearing and determination of the substantive appeal, the Appellant (MCSK), whether by itself, its servants, agents, officers or any person acting under its authority, is restrained from holding itself out as a licensed Collective Management Organisation,” the court ordered.
It further barred MCSK from “collecting, demanding, invoicing, receiving or levying royalties or licence fees from users of copyrighted works” where the exercise of such functions requires a licence under Section 46 of the Copyright Act.
The dispute stems from KECOBO’s rejection of MCSK’s application for a CMO licence in October 2025.
The regulator argued that the society had not met the statutory licensing requirements under the Copyright Act and the Copyright (Collective Management) Regulations, 2020.
MCSK challenged the decision before the Copyright Tribunal, arguing that the regulator had acted unlawfully and unfairly.
However, the Tribunal dismissed the appeal and upheld KECOBO’s decision.
Aggrieved, the society appealed the decision at the High Court, seeking to overturn the decision and obtain interim orders allowing it to continue operating pending the determination of its appeal.
The society argued that it represents more than 15,000 authors, composers, publishers and copyright owners and that denying it the ability to operate would cause significant prejudice to its members.
MCSK also maintained that the refusal to license it had disrupted copyright administration and that its members’ underlying proprietary rights remained protected regardless of the licensing dispute.
KECOBO opposed the application, arguing that MCSK had no legal authority to continue collecting royalties after its licence application was rejected and the Tribunal subsequently upheld that decision.
The regulator contended that allowing MCSK to continue operating would effectively grant it a licence through a court order despite its failure to secure one through the statutory licensing process.
The court found that MCSK’s appeal was arguable, noting that it raised questions concerning the interpretation of Section 46 of the Copyright Act, the legality of KECOBO’s decision, procedural fairness and constitutional rights.
However, it held that an arguable appeal alone was insufficient to justify the orders sought by MCSK.
“The Court should be slow to issue an interlocutory order which has the practical effect of conferring the equivalent of a statutory licence where none presently exists,” the judge said.
The court also rejected MCSK’s application for a stay, finding that the Tribunal’s judgment was a negative order because it dismissed the society’s appeal without directing any positive action capable of being stayed.
On KECOBO’s application, the court said the regulator had established a prima facie case that MCSK was exercising functions requiring statutory authorisation.
“The balance of convenience favours preservation of the existing regulatory position,” the court ruled.
It added that allowing MCSK to continue collecting royalties would alter that position, while restraining the society would maintain the status created by the existing licensing decisions.
The judge, however, cautioned that the ruling did not determine the merits of the substantive appeal.
The ruling leaves the Performing and Audio Visual Rights Society of Kenya (PAVRISK) as the licensed CMO authorised to collect and distribute royalties, weeks after KECOBO’s suspension of the Kenya Association of Music Producers (KAMP) licence.
