Performers’ Rights: Positive Amendments to the Kenya Copyright Act

The Business Daily reports that the Attorney General has proposed amendments to the Kenya Copyright Act 2001 (No 12 of 2001) by inserting a new clause (30A) which now gives performers the right to claim and equitably share remuneration for sound recordings and visual works among themselves.

In a quote reported from the Kenya Gazette Supplement, AG Muigai explains that

“If a sound recording is published for commercial purposes or a reproduction of such recording is used directly for broadcast or other communication to the public performed, a single equitable remuneration for the performer and the producer of the sound recording shall be paid by the user through their respective collecting management organisation,”

Angela Ndambuki, the GM of Performers Rights Society of Kenya (PRSK) is reported to be in support of the new amendment and said as follows:

“(The new law will) put Kenya at par with international best practice and introduce this right which I would say is an advantage to all users of music as they can now play what they want to play without any restrictions as before (…) The equitable remuneration right is actually not about KAMP and the performers society but about the producers and performers as a whole.”

A full copy of the proposed amendments to Section 30 of the Copyright Act is available here.

Comment:

IPKenya believes that this is indeed a positive amendment to the Copyright Act because it finally provides that a performer of a sound recording or a visual recording is entitled to an equitable remuneration for the use of sound recordings or visual recordings. The importance of enshrining these rights to remuneration for performers cannot be overstated. The rights to remuneration which by law are shared between different categories of right holders are not transferable, contrary to the exclusive right which is continuously under pressure from the performers’ interlocutors (producers and broadcasters who want to obtain the transfer of the performers’ rights to their benefit).

Independently from what has been agreed between a performer and producer, the share between both (and also of the author in the case of private copying) must be done as legally provided and can not be contractually modified. This is a very important advantage of the rights to remuneration over exclusive rights.

As IPKenya has previously reported, the collecting societies for performers and producers of sound recordings, PRSK and KAMP respectively, have entered into a partnership whereby annual license fees for royalty payments are collected jointly. Therefore this proposed amendment is timely and provides much needed clarity in copyright and related rights administration in the country.

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