Kenyan DJs Must Be Licensed for Commercial Use of Copyright and Related Rights in Music

It all started with this lone tweet from your favourite DJ’s favourite DJ:

Endless tweets, tweefs and radio interviews later, the air does not seem to be quite clear yet on the important role that DJs must play in the collective management of copyright and related rights in Kenya.

The common point of departure is the Copyright Act of Kenya Cap 12 of 2001. From this Act, it is clear that all the rights in a song or music work belong to the composer. However, as soon as the song or musical work is fixed or recorded, then the maker of the fixation or sound recording holds the copyright for that fixation or recording.

Now let us turn to Section 26(1) of the Act which states as follows:

“26. (1) Copyright in a literary, musical or artistic work or audio-visual work shall be the exclusive right to control the doing in Kenya of any of the following acts, the reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original…” [Emphasis added]

Essentially what this means is that copyright is the exclusive right to control various acts, including reproduction, distribution, communication and broadcasting. In the case of DJs, it is important to note that communication to the public means a live performance and the transmission to the public of a work or sound recording and includes the making available of that work or sound recording by electronic transmission.

In Kenya, the right to issue public performance licenses has been granted to Music Copyright Society of Kenya (MCSK) on behalf of composers of music and to the Kenya Association of Music Producers (KAMP) on behalf of producers of sound recordings. MCSK and KAMP are known as collective management organisations (CMOs). All CMOs in Kenya are licensed by the government through the Kenya Copyright Board (KECOBO).

It is a fact that DJs exploit musical works and sound recordings for commercial gain, hence the reason they need to take out a public performance license from MCSK and KAMP. The license fees collected by MCSK and KAMP is paid in the form of royalties to their respective members.

When the DJs carry out the public performance they should either perform the music as presented by the Manager, plungers and artists but we find that the DJ’s rip the music and store it in their data banks or other alternative storing devices. In this case there is exploitation of Reproduction rights. Whenever DJs make compilation of music they are exploiting Reproduction rights in musical works and sound recordings.

The other issue that needs to be clarified is that whenever they buy music, physical or digital, that is for personal and private use but the moment it is taken for commercial use then the relevant clearances need to be taken with both MCSK and KAMP.

Last but not least, it is important to understand that MCSK and KAMP issue licenses for both local and foreign works. In the case of MCSK, they are legally allowed to license for foreign works because they have signed reciprocal agreements with CMOs like MCSK around the world. MCSK has signed agreements with Performance Right Society (PRS) and the Mechanical Copyright Protection Society (MCPS) both of the United Kingdom, SAMRO of South Africa, MCSN of Nigeria, American Mechanical Rights Agency (AMRA) of the United States of America, SODRAC of the Canada, COSCAP of Barbados, ASCAP of the United States of America, SACEM of France, Music Authors’ Copyright Protection (MACP) of Malaysia, JACAP of Jamaica, Copyright Organisation of Trinidad and Tobago (COTT), etc… What this means is that MCSK receives royalties from all over the world when Kenyan music is used but it also sends out royalties to the foreign CMOs when their music is played here in Kenya.

In Kenya, the current public performance license fees to be paid is a grand total of Kshs 31,500, 21,500 goes to MCSK and 10,000 goes to KAMP. For more details on MCSK’s license fees and tariffs, visit their online page here.