Proposed Draft National Music Bill: More Licenses, More Confusion and Yet Another Fund

The Music Policy Discussion on the Draft Music Bill Kenya by Francis Muchina Elani Sauti Sol MCSK KECOBO.jpg-large

The latest draft of the proposed National Music Bill has been released by the Permanent Presidential Music Commission (PPMC). PPMC requests all stakeholders and interested parties to circulate it widely and email back (to: directorppmc@gmail.com) any contributions, comments, reactions, etc for consideration and possible inclusion. A copy of the draft document is available here.

This blogpost highlights some of the key features of the PPMC draft document including an apparent conflict with existing intellectual property (IP) legislation.

The document establishes a National Music Council whose functions include to “license persons operating music sale businesses within Kenya”. Music sale business is defined as the sale of music in any form and includes the sale of blank media, music accessories and equipment. Section 17 of the document demands that any person operating a music sale business in Kenya must be a holder of a current license issued by the Council for that purpose. The penalty for failing to comply with this section is a fine of not less than two hundred thousand shillings but not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both.

This proposal may be problematic for various reasons. Firstly, it is not entirely clearly whether the aim of the license is regulation or revenue generation. In any case, licensing private sector activities which are already over-taxed and over-licensed both at the national and county levels, appears to be ill-advised and may have an adverse effect on the supply of music. Secondly, this licensing proposal appears to ignore, whether deliberately or unintentionally, the licensing systems under the regime of copyright collective management  which not only deal with economic rights but also private copying through the blank tape/ blank media levy. Do the originators of the document propose to do away with collective management organisations and substitute the National Music Council in its place?

Section 29 of the document imposes quotas for broadcast and public performance of Kenyan music. In addition, broadcasting organisations are compelled to keep and maintain logs, statistical forms and programme records for a period of not less than twelve months after the date of last entry. These proposals create unnecessary regulatory overlaps between the Council and the Communications Authority of Kenya whereas these proposals could have easily been proposed as amendments to the Kenya Information and Communications Act and its regulations on broadcasting.

Interestingly, the document proposes the establishment of a National Music Fund to consist of several sources including “such percentage of music earnings as shall be annually determined by the Council and Kenya Copyright Board (KECOBO)”. It is not clear from the document whether “music earnings” refers to the monies collected by Council and KECOBO from their respective licenses and other regulatory levies.

Section 49 of the document proposes the establishment of a tribunal to be known as the National Music Tribunal. It is proposed that this Tribunal shall have jurisdiction to determine all music industry disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear provided that such matters are not in the jurisdiction of the Competent Authority established under the Copyright Act. Drawing from the experience of the “tribunal” under the Copyright Act, the document should be clear on this Music Tribunal’s operationalisation. In a previous post here, we highlighted KECOBO’s proposed amendments to its Act including that the Competent Authority aka Copyright Tribunal should have jurisdiction in disputes where “an artist has infringed on the copyright of another artist”.

Finally, it is still not clear which cabinet ministry will exercise oversight on this Council since the document proposes that the ministry in charge shall be the “Cabinet Secretary for the time being  responsible for matters relating to music” – which may entail several ministries.

 

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