The High Court in Nairobi has declined to compel mobile operators Safaricom and Airtel to pay musicians directly for callback tunes, popularly known as Skiza on Safaricom and Hello tunes on Airtel.
The case had been filed by Justus Ngemu, the chairman of the Music Associations Alliance of Kenya (MAAK), alongside musician and former teacher Saul Esikuri.
The two petitioners had asked the court to order the Kenya Copyright Board (KECOBO) and the Cabinet Secretary for Gender, Culture and Arts to enforce direct payments to artistes, rather than allowing funds to pass through Premium Rate Service Providers (PRSPs).
PRSPs are intermediaries that offer services and applications which attract a charge to mobile subscribers. Ngemu and Esikuri argued that artistes were losing money because PRSPs continued to be paid instead of the musicians themselves.
In his judgment on Friday, Justice John Chigiti noted that the two telcos were already paying artistes, even though there are no existing regulations or a formal database of all musicians.
He explained that if direct payment was to be implemented, there needed to be a reliable system of identifying all artistes and their works. The judge also revoked earlier orders that had frozen funds and compelled telcos to pay artistes directly, restoring the payment arrangement that was in place before the case was filed.
“This court notes that the Applicants have been beneficiaries of revenue through an arrangement with the premium rate service providers under Subsection 30(2), albeit without regulations. The Applicants are blowing hot and cold air at the same time,” Justice Chigiti said. He further directed KECOBO to move with speed in creating a comprehensive database of musicians in order to make future direct payments possible.
The dispute has its roots in the Copyright (Amendment) Act No. 14 of 2022, which introduced Section 30C into the Copyright Act.
This amendment, signed into law in April 2022, was intended to bring clarity to the way revenue from ring-back or callback tunes is shared between artistes, telcos and service providers.
The law stipulates that after taxes are deducted, artistes are entitled to a minimum of 52 per cent of the revenue, while telecommunications companies retain 39.5 per cent and Premium Rate Service Providers receive 8.5 per cent.
The amendment also states that for contracts signed after the law took effect, the artistes’ share should be paid to them directly by the telecommunications firms.
However, Justice Chigiti observed that in practice, the system required to support direct remittances had not been fully established.
The court was also informed that the petitioners had previously participated in meetings and consultations on how the law should be implemented, which further weakened their argument for an immediate directive.
The ruling highlights the gap between the legal framework and the reality of revenue distribution in Kenya’s music industry. While the law now protects artistes’ earnings more explicitly, the absence of a complete database and the continued reliance on PRSPs mean that the transition to direct payments remains unfinished.
KECOBO now bears the responsibility of building the necessary structures to make this legal provision workable.
At the heart of the debate is the long-standing frustration among musicians who have complained about low and inconsistent royalties from callback tunes despite their popularity.
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