Ringtones have been a fixture of the mobile landscape since their inception. First making the scene as basic bell-ringing sound effects that accompanied the reception of mobile calls and, subsequently, incoming text messages, ringtones became really popular when they started emulating users’ favorite song melodies. Evolving into polytones that overlaid multiple MIDI-style tracks to create a richer sound, and into truetones that were actual sound clips as opposed to collections of beeps and rings, ringtones quickly took hold of the mobile content market and undeniably rose in popularity. The involvement of the music industry subsequently meant that ringtone downloads could now bolster sales for music artists, who would also in most cases be granted royalties for the ringtone sales for their music from official outlets.
Recently, however, a group of 11 top Kenyan music artists had to bring their cause to court in order to get some order in the way that their music is distributed. A ruling by Lady Justice Martha Koome has put a stop to the distribution of the musical work of these 11 Kenyan artists by mobile operator Safaricom and ringtone provider Cellulant, at least until a decision is reached regarding a case brought forth by the MCSK, or Music Copyright Society of Kenya. A such, Safaricom can no longer distribute the music of these artists to their subscribers – who number in the 10 millions – through the Skiza music distribution service. Ringtone provider Cellulant became part of the suit once Safaricom admitted to the selling of music to subscribers, seeking the enjoinment of Cellulant in the suit and proceedings as third parties. However,
Cellulant maintains that they were given the rights to distribute ringtones by Cellulant Kenya Ltd, and refers to agreements signed with a number of artists. Cellulant did, however, admit to using the music of Nyota Ndogo [privately known by the real name of Ms. Mwanaisha Mohamed] – specifically the song Watu na Viatu — without autorization. Mwanaisha has confirmed this, swearing to an affidavit that denies ever granting permission to either Safaricom or Cellulant for the use of her work. Further complications arose when, upon Cellulant’s revelation the court that they had been given permission by Les Wanyika to use its music [including such hits as Kasuku, Wazazi, Tafuta Wako and others], the court noted that the person who had supposedly given them such authority – Alfan Maraga Kandiro – was not the one authorized to do so. The MCSK affirmed this by saying that the late John Andre Ngereza, who owns the works of the group, had assigned the rights to the society.
However, Lady Justice Koome drew the line at the petition to search the Safaricom grounds to remove stored digital music from their machines. This drew a reaction from the MCSK, who fear that without an order of injunction, Safaricom would just keep on violating the society’s rights. As such, the MCSK appealed that the court restrain the defendants from further infringements. For their part, Safaricom countered that the MCSK had not managed to demonstrate a breach of contract, adding that the artists were within their rights to use their works as they saw fit.
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