That explanation is in line with the observation of Kimaru, J of the High Court of Kenya,
Milinani Commercial Court in the case of Cellutant Kenya Ltd v Music Copyright Society of
Kenya Ltd [2009] eKLR to the effect that:“The necessity of a Copyright Collecting Society such as the defendant is
imperative on account of the fact that such society has the expertise and means
of monitoring copyright users for purposes of assessing royalties that is required
to be paid to the individual copyright owners. It would be impossible for an
individual artist, like in the instant case relating to music, to monitor the various
media that exploit the copyrights of such artists to determine the level of royalty
that should or ought to be paid”.
PW2 further testified that when it comes to administering such rights outside the UK, for
example in Uganda, PRS (UK) would enter into an agreement with the collecting society in that
country which in this case is the plaintiff. She explained that under that agreement permission is
given to the collecting society to enforce those rights, for example, by licensing, collecting
royalties and where necessary taking proceedings for infringement of the rights. She added that
in Uganda the plaintiff has exclusive rights to enforce those rights and it includes taking
proceedings in its own names.
On cross-examination, she conceded that according to article 2 (1) (c) of the contract for
reciprocal representation (Exhibit P6), the arrangement was subject to local legislation and if
such local legislation required some steps to be taken before proceedings it should be complied
with. She also confirmed that under article 4 of the Deeds of Assignment PRS (UK) could go
back to a member who had assigned his rights to obtain a document such as deeds and power of
attorney before enforcing the rights.
With the above background in mind, I have had the opportunity to look at the Deeds of
Assignment executed by some of the UB40 members admitted in evidence as exhibits P1 (i)(viii). I will first look at the effect of the assignments to PRS (UK) by the individual UB40
members for purposes of determining whether PRS (UK) was the owner of the copyrights in
dispute which it could confer on the plaintiff. That would necessitate defining the word “assign”.
Black’s Law Dictionary defines the verb “assign” as: “To convey; to transfer rights or
property”. Meanwhile assignee is defined as “one to whom property rights or power is
transferred”. The author however cautions that use of the term is so wide spread that it is
difficult to ascribe positive meaning to it with any specificity. He then stated that courts
recognize the protean nature of the term and are therefore often forced to look to the intent of the
assignor and assignee in making the assignment rather than to the formality of using the term
assignee in defining rights and responsibilities.
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