Court halts Skiza, Hello tune royalty payments to artistes

The High Court has halted remittance of call ring back tunes (Skiza tune and Hello tune) revenues to collective management organisations (CMOs) pending determination of a case filed by two artistes against government.

The order issued by Justice John Chigiti is directed to telecommunication firms Safaricom (owner of Skiza tune) and Airtel (owner of Hello tune). It stops Safaricom and Airtel from remitting money to CMOs, described as Premium Rate Service Providers (PRSPs).

Skiza tunes for Safaricom and Hello tune for Airtel offer Kenyan musicians opportunity to sell their music at a daily subscription rate of Sh1.50 for each Skiza tune and Sh1 for each Hello tune. PRSPs are CMOs whose work is to integrate music into services like Skiza and Hello tune. They also manage the royalty payments by the telecommunication firms to artistes.

The case tabled before the judge at the High Court in Milimani Nairobi involves implementation of a new revenue-sharing formula of money collected from Skiza tune subscribers by the telecommunication firms.

It also involves remittance of revenues directly to artistes without involvement of intermediaries such as the premium service providers to ensure timely payments.

The legal dispute was initiated by artistes Justus Ngemu and Saul Esikuri against the Kenya Copyright Board, Cabinet Secretary in charge of art and the Attorney General (Respondents). Safaricom and Airtel are listed as interested parties.

The case seeks enforcement of sections of the Copyright Act amended in 2022, which adjusted the artistes’ income upwards to 52 percent of the Skiza tune sales generated by telecommunication firms. Initially, they used to get 16 percent.

The high income was brought by the Copyright Act amendment No.14 of 2022, which introduced Section 30C to address payment of ring back tune revenues and sharing of the money amongst parties.

The judge directed the respondents and interested parties to file their responses within 14 days and fixed the case for mention on July 7, 2025.

According to the Act, artistes or copyright holders should get the lion share of not less than 52 percent, telecommunication operators 39.5 percent and premium rate service providers a share 8.5 percent.

The law states that all contracts between premium rate service providers and artistes or owners of the copyright existing before the commencement of the Act would apply until their expiry, and subsequent contracts would conform to the new legal provision.

In addition, it provides that the telecommunication operators should remit directly to the artiste or owner of the copyright the ring back tune net revenue share (52 per cent) allocated to them as specified in the law.

The law amendment was passed by Parliament in February 2022 and signed into law by former President Uhuru Kenyatta in April 2022. The amendment was sponsored by former Homa Bay Woman Representative Gladys Wanga, now the county governor.

The two artistes are concerned that despite the said law amendment coming to force, the Kenya Copyright Board, Cabinet Secretary in charge of arts and the Attorney General have continued to allow through omissions the telecommunication firms to breach the law by letting them pay ring back tune net revenue share to Premium Rate Service Providers (PRSP).

It is their case that the strict non-enforcement of the law has caused economic and financial hardship to the entire music fraternity within the country.

Justice Chigiti halted the payments and allowed the artistes to commence Judicial Review proceedings within 14 days applying for an order to compel the government and the telecommunication firms to enforce provisions of the Copyright Act.

The court found that a cursory perusal of the case showed the artistes have a strong case and are merited to be granted leave to apply for the orders.

“The gist of the Application before this court is that the applicant is seeking leave to commence judicial review proceedings. I am satisfied that the Applicants have made out a strong case to warrant the grant of the leave sought. I find that the Application has merit,” said Justice Chigiti, senior counsel.

The artistes told court that they sued after trying to amicably resolve the dispute with the respondents and that they had no other avenue than to seek for an order compelling them and their agents to enforce the law. Its only the telcos who are gaining financially to the disadvantage of the applicants, they argued.

They stated that they have tried in vain to engage the government with a view of implementing the said provisions of the law to no avail.

The Kenya Copyright Board had resisted the case stating that there was no evidence to suggest that the respondents have neglected to carry out a statutory duty in an unlawful manner.

“The primary responsibility to enforce compliance with ring back tunes contracts lies with the parties to the agreement. These are; the artistes or copyright holder; Telecommunication operator and the premium rate service provider. There is no statutory enforcement mechanism or obligation placed on the Respondents to enforce the private contractual right under the Section,” it stated.

“The Applicants have failed to demonstrate that the Respondents have a statutory or common law duty to act in the manner sought”.

The Board added that the artistes had not demonstrated that there is no alternative remedy available to them before initiating the court process.

“Before seeking such a court remedy, the Applicant must prove that there is no other adequate alternative remedy available to them. In this case, the Applicant has failed to explore other legal avenues that could potentially resolve the issue at hand,” it stated.

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