CMOs Behaving Badly: Kenya Featured Alongside EU and US Copyright Collecting Societies

The raison d’etre of  the collective administration or collective management system in copyright law is to bridge the gap between rights holders and users of copyright works. So, what happens when collecting societies, or as they are commonly called collective management organisations (CMOs), fail to carry out this core function and instead become poster children for corruption, mismanagement, lack of transparency, and abuse of power?

Back in 2013, Jonathan Band and Brandon Butler published an insightful article titled ‘Some Cautionary Tales About Collective Licensing’ which exposed the dark side of CMOs around the world. This blogger was pleased that some of our work in the context of CMOs in Kenya was featured in the article, specifically the on-going wrangles between Music Copyright Society of Kenya (MCSK) and literally everyone else including the copyright regulator, copyright owners, copyright users and even other Kenyan CMOs in the music industry.

Uncertain Future for Reprographic Rights in Kenya as KOPIKEN Collecting Society Registration Not Renewed

In a public notice by Kenya Copyright Board (KECOBO) published on February 4th 2016, we are informed that KECOBO at its Board Meeting of January 28th 2016 considered the application for renewal of registration as a collecting society made by the Reproduction Rights Society of Kenya (Kopiken). After consideration of Kopiken’s application, KECOBO decided not to renew Kopiken’s registration. This means that as of January 1st 2016, there is no registered collecting society for reprographic rights in Kenya. In this regard, KECOBO in its public notice states as follows: “KECOBO will be consulting stakeholders of KOPIKEN to determine its future sometimes (sic) in March 2016.”

Jurisdiction is Everything: Time to Merge Tribunals for Copyright, Industrial Property, Seed and Plant Varieties

As readers may know, a government taskforce had earlier recommended the merger of the three intellectual property (IP) offices dealing with copyright, industrial property and anti-counterfeit matters. The implementation of these recommendations appears to have stalled with no progress made to-date. In addition to the IP offices, there is also the matter of the various IP dispute resolution bodies created under the various IP laws: the Industrial  Property  Act establishes the Industrial  Property  Tribunal, the Copyright Act establishes the Competent Authority (akin to a Copyright Tribunal), the Anti-Counterfeit Act  establishes the Anti-Counterfeit Agency and the Seeds and Plant Varieties Act establishes the Seeds and Plant Tribunal.

Recently, the Judiciary Working Committee on Transition and Restructuring of Tribunals developed a Draft Tribunal Bill 2015 to help domicile all tribunals under the Judiciary. This is an important step that could benefit IP owners and users in the quick and expert settlement of various IP-related disputes.

Sights and Sounds of World IP Day 2015: The East African Edition

Recently, countries around the world celebrated World Intellectual Property (IP) Day 2015 under the theme: “Get Up. Stand Up. For Music”. This blogger is pleased to report that Kenya, Uganda and Tanzania each held their own exciting events to mark World IP Day 2015.

Here are some of the important highlights:-

Some World Intellectual Property Day 2015 Posters from Africa

As the world prepares to mark World Intellectual Property (IP) Day this Sunday April 26th 2015, this blogger has come across several World IP Day posters from around the continent created to reflect this year’s theme: “Get Up. Stand Up. For Music”. According to the map of World Intellectual Property Day 2015 Events by World Intellectual Property Organization (WIPO), there are only sixteen (16) confirmed World IP events being held in ten (10) countries across the continent. This blogger reckons that this represents a low turn-out by IP stakeholders across Africa’s fifty four (54) states given this year’s World IP Day theme and the importance of World IP Day activities and events for awareness creation and public sensitisation.

World Intellectual Property Day 2015: “Get up, stand up. For Music.”

“When Bob Marley and the Wailers laid down the opening track on Burnin’ in a Kingston recording studio some four decades ago, they likely had little idea how far their simple, straightforward tune would resonate, becoming an enduring international anthem for human rights.

Such is the power of music.” – WIPO, 2015.

The theme for World Intellectual Property (IP) Day 2015 is out: “Get up, stand up. For music”. In its press release, the World Intellectual Property Organization (WIPO) describes music as the “most universal of creative expressions” which “transcends borders and connects with some primal beat within all of us”. Through this theme, WIPO also appears to be paying tribute to the “inspiration and hard work of thousands of creative people around the world – singers and songwriters; musicians and publishers; producers, arrangers, engineers and many others” who are responsible for the music that we enjoy today.

This year’s World IP Day theme invites us all to explore some of the changes shaping the music industry today, and interact with those intimately involved in the business of making music about how they see the future. In this regard, WIPO asks:

“What is the future of our relationship with music? How will it be created and disseminated? How will we listen to it? And how will we ensure that all those involved in bringing us this universal pleasure can make a living from their craft?”

This blogger wishes everyone all the best as preparations to celebrate and reflect on this year’s #worldipday theme begin.

In the African context, this blogger highlighted Kenya’s successful 2014 World IP Day activities here and hopes that this year will be equally memorable.

International Women’s Day: Celebrating African Women Leaders in Intellectual Property

Angélique Kidjo won her 2nd Grammy Award in 2015. The world renowned Beninoise singer-songwriter is Vice President of the International Confederation of Societies of Authors and Composers (CISAC). CISAC is the umbrella body for copyright societies worldwide.

Celebrated globally on 8th March, this year’s International Women’s Day highlights the Beijing Declaration and Platform for Action, a historic roadmap signed by 189 governments 20 years ago that sets the agenda for realizing women’s rights. The official United Nations theme for International Women’s Day 2015 is “Empowering Women – Empowering Humanity: Picture It!”

“When we unleash the power of women, we can secure the future for all” – United Nations Secretary-General Ban Ki-moon in his message for International Women’s Day 2015.

To mark this year’s International Women’s Day (#IWD2015), this blogger has compiled a list of some of the (influential) women (leaders) in intellectual property (IP) from Kenya and throughout English-speaking Africa. The women listed below (in no particular order) are primarily drawn from IP offices, academia, non-governmental organisations and the IP legal fraternity.

Copyright Board To Review Guidelines for Collective Management Organisations

This blogger has learned that KECOBO is in the process of the review its CMO Guidelines titled “Guidelines for Licensing Collective Management Organisations”. These CMO Guidelines are available on KECOBO’s website here. Therefore, this blogger hopes to provide an in-depth examination of the Guidelines while making comments on important areas and issues connected with the Guidelines.

In coming up with these Guidelines, KECOBO explains in the opening paragraph that it is mandated under the Act to license and supervise CMOs in Kenya so to ensure that CMOs carry out their core function, namely the collection and distribution of royalties. It is noteworthy that since 2011 when the Guidelines were introduced, KECOBO has been enforcing these Guidelines against CMOs despite the fact these guidelines have no force of law. It is therefore advisable that KECOBO causes the inclusion of these Guidelines in Regulations to be made by the Minister (Attorney General) under section 49 of the Act.

Notwithstanding the legal force of these Guidelines, this blogger has the following comments to make on the Guidelines:

1. Title: this blogger suggests that the title of the Guidelines be amended to include “and Supervising”.

2. Public Notice: KECOBO may wish to include a time frame within which notices shall be published to increase KECOBO’s accountability and transparency. In addition, KECOBO may wish to specify which platform(s) will carry the public notices eg. local dailies with national circulation, KECOBO’s official website, KECOBO notice board?

3. Licensing: In the spirit of transparency and accountability, KECOBO may consider including a time frame within which licenses shall be processed once all application documents are submitted.

4. New Applications: The requirement under (g) appears vague and KECOBO may consider specifying what documents would be required to satisfy that the applicant has the “capacity for collection and distribution of the royalties”.

5. Renewal of License: To avoid duplication of documents submitted by licensed CMOs, the requirements of (a) and (b) should be removed. In the alternative, the requirement (b) should be qualified for cases where the memorandum and articles of association have been amended.
With regard to requirement (i), submitting individual deeds of assignment for each and every member may be onerous for most CMOs due to the sheer bulk of documentation to be produced. At any rate, KECOBO may decide to verify the deeds during an inspection visit to ensure that it corresponds with the list of members submitted.

6. Revocation of a license: The CMO Guidelines have made several additions to the grounds provided under the Act. However the wording and punctuation of this list of grounds for revocation is ambiguous as it does not disclose whether all the ten (10) listed grounds must be present for revocation or whether the presence of one or several grounds is sufficient.

In sum, this blogger submits that the Guidelines play an important role of supplementing the existing legal provisions on licensing and supervision of CMOs found in the Copyright Act, 2001 and Copyright Regulations, 2004. However these Guidelines ought to be given the force of law in order for KECOBO to enforce them against CMOs.

Editor’s note: The author currently works with MCSK however the views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.

Kenya Copyright Board and Collecting Societies: Myths and Facts

The subject of this article is to critically analyse some of the questionable statements made by KECOBO in the latest edition of its newsletter, “Copyright News”. This particular edition is themed: Collective Management Organisations (CMOs). As many may know, there are currently four registered CMOs in Kenya namely (from oldest to youngest): the Music Copyright Society of Kenya (MCSK), the Reproduction Rights Society of Kenya (KOPIKEN), the Kenya Association of Music Producers (KAMP) and the Performers Rights Society of Kenya (PRiSK).

In a previous article here, this blogger commented on KECOBO’s poor performance in licensing and supervision of CMOs. Therefore this recent publication by KECOBO is useful in identifying certain areas of concern in the regulation of CMOs.

Take for instance, the statements on page 4 made by KECOBO’s second-in-command, Mr. Edward Sigei:

In the last few years, there has been some progress and a few of setbacks in this area [regulation of CMOs] as can be seen elsewhere in this publication.

One wonders why no mention is made of KECOBO’s deregistration of MCSK in 2011 and the ensuing court battle spanning over a year. One may also be curious to know why KECOBO fails to address the increasing reports of anti-competitive and/or unethical practices by the three CMOs operating within the music industry namely, KAMP, PRiSK and MCSK. How does KECOBO propose to deal with this emerging issue?

In this regard, this blogger submits that competition between CMOs may provide the solution to increase their productivity and efficiency. The one society per category of works rule entrenched in the Act ought to be amended so as to allow other entrants in the collective management business. This move would ensure that members and users alike benefit more from the collective administration of copyright.

Currently, there is a popular push for further reform in the sector to strengthen the oversight role of the Kenya Copyright Board in the absence of vibrant membership within the CMOs.

The absence of a vibrant membership within CMOs is due to ignorance. CMO members may not be fully aware or fully appreciative of their power as shareholders in the CMO. The creation of this awareness or appreciation among these members ought to be stated openly and clearly as an integral part of KECOBO’s outreach and sentisation agenda in collaboration with the CMOs.

Users generally complain of arbitrary license hikes to already high tariffs and they are subsequently demanding controls. Small kiosks and shops are being threatened thereby.

One of the novel features of the revised 2001 Copyright Act was the Competent Authority whose mandate includes reviewing CMO tariffs. However KECOBO has not pushed hard enough or fast enough for the Government to set up this Competent Authority. This Authority, once fully in place, would act as a Copyright Tribunal to hear and determine cases brought against CMOs by users of copyright works.

Drawing from this campaign to reform the law and recent developments globally, some of the legislative interventions under consideration include:

• Empowering the Kenya Copyright Board to order forensic or other audit on CMOs based on credible information

Who is to bear the costs of KECOBO’s decision to order forensic and other audits of CMOs where these audits are treated separately from the normal audits carried out by CMOs in every financial year? Will the members of the CMO still have a final say in the firm of auditors to be appointed?

• Introduction of the Attorney General’s power to approve and review tariff and to exempt small businesses from time to time.

Why not empower the AG to examine the entire licensing system including terms and conditions of license agreements as well as licensing procedures?

• Empower the Kenya Copyright Board to disband CMO Boards in cases of gross mismanagement and call for fresh elections and/or disqualify outgoing Board members.

Such a statutory power to disband CMO Boards by KECOBO ought to be carefully worded and exercised sparingly. For instance, in section 76 of Uganda’s Copyright Act, the Registrar of Copyright is empowered to order the cancellation of registration of a CMO after the findings of ad-hoc committee of inquiry or inspection or an application made by two-thirds of the members of a CMO.

(…)
• Reconsider utility of Section 38(2) of the Copyright Act in view of the rising cases (sic) alleged harassment arising out of its enforcement.

This section deals with the restricted act of public performance in copyright and related right in a musical work and sound recording, respectively. This section creates the offence of wilfully causing a public performance without the authorisation of the rights holders in the works. It is this blogger’s opinion that rights holders or their respective CMOs have the right to enforce this provision and pursue criminal action against all infringers under this section. Such infringers include all commercial premises, public service and commercial vehicles, telecomunications companies, broadcasters, content service providers and premium rate service providers, operating countrywide.

However CMOs lack trained prosecutors to deal with copyright infringement cases brought forward by CMOs as complainants. In 2012, the Director of Public Prosecutions appointed five (5) individuals employed at KECOBO to serve as public prosecutors for the purposes of cases arising under the Copyright Act. These prosecutors are required to handle all copyright infringement cases countrywide, including infringement cases brought by CMOs. To date, KECOBO has not provided any guidance or assistance to CMOs in prosecuting cases arising out of section 38(2) of the Act.

Let’s now consider some of the statements made by the KECOBO Chief Executive, Dr. Marisella Ouma on the subject of CMOs in Kenya.

On page 5 of the Newsletter, she states:

Their [CMOs’] licences are renewable annually subject to each CMO fulfilling their obligations under the Copyright Act, Companies Act as well as the implementing regulations.

From a practical point of view, the duration of the CMO license ought to be reviewed. One calendar year is too short a period to adequately assess the performance of a CMO. This reality is compounded by the statutory requirement to submit annual reports and audited accounts. How does KECOBO evaluate the performance of a CMO throughout an entire year on the basis of one single report submitted at the end of the licensing period?

A cursory look at the license conditions in other African countries is also instructive. In South Africa, a CMO license is granted for 5 years, whereas in Nigeria, the CMO license runs for 3 years and in Uganda, license duration is perpetual.

However, if KECOBO is adamant on retaining the one year license duration, the Act ought to be amended to require at the very least semi-annual if not quarterly reports from the CMOs.

The legality of KECOBO’s CMO Guidelines and Licensing Agreement for CMOs is worth mentioning. These two documents developed by KECOBO have no basis in the Copyright Act and yet they continue to be enforced against CMOs. Both CMOs and other key stakeholders ought to have a say on how KECOBO exercises its public powers in licensing and supervision of CMOs.

The collection of royalties has to be done within the provisions of the laws of Kenya. Thus the Collective Management Organisations have no right to confiscate any property such as radios, TVs and other equipment from users unless they have followed the due process for instance obtained a warrant or a court order to detain the property.

This blogger respectfully disagrees with this position. Section 39(2) states clearly that in addition to the copyright inspectors appointed under the Act, any police officer may perform the functions of an inspector under the Act. Section 41 vests powers of seizure on inspectors and section 42 deals with the powers of arrest. For the offence relating to public performance under section 38(2) of the Act, the prosecution must produce in court the device used to cause the public performance.

Looking generally at the Newsletter’s content, it may be of interest to note that the interviews with the CMO leaders do not disclose certain key information that would be of great use to the public. Apart from MCSK, none of the other CMO interviews deal with the issue of royalty distribution. The facts and figures on distributions vis-a-vis expenditures is an important area of collective management that ought to have been addressed across all CMOs interviewed.

Still on the question of partial interviewing, the responses by the star interviewee, Mr. John Katana are also questionnable. Firstly, this interview totally fails to address the responsibility of CMO members to hold their CMO accountable and the powers of members to take charge and make decisions on the governance and operation structures of their respective CMOs.
Secondly, the interview blatantly suggests that there is a standard worldwide cost-royalty ratio of 30:70 whereby 70% is paid to musicians and 30% is used for administrative costs. This blogger would be interested to know the source of this assertion.
Finally, the interview conveniently fails to disclose that the interviewee is a Board Director at KECOBO. Therefore any reasonable reader of the newsletter would read in between the lines of this interview and see clear statements made by KECOBO to advance its own agenda on regulation of CMOs.

In the final analysis, the total value addition of copyright-based industries to Kenya’s Gross Domestic Product (GDP) is estimated to be over Kshs. 85.21 Billion. It is submitted that this fact underscores the important role played by KECOBO as the state agency responsible for the administration of copyright and related rights in Kenya. Part of this weighty mandate is the licensing and supervision of Collective Management Organisations (CMOs) who represent the bulk of Kenya’s creators and copyright owners.

To Photocopy or Not to Photocopy: The Role of the Reproduction Rights Society in Kenya

One of the local newspapers recently published an article titled: “Can’t someone stop this photocopying madness?”, which raises the alarm over high levels of illegal photocopying especially in tertiary institutions of learning, namely our universities. The writer explains:

We were taught in classes that photocopying a book without the requisite permission of the copyright holder would be against the law, except for the very strict exemptions made on the copyright page of the book. Yet at student centres and other photocopying areas in institutions of higher learning, the exact opposite of this lesson goes on in the open.
Students photocopy entire books. Some shop owners photocopy books in advance and store them for sale. With such scenarios, what does the student learn? That the lessons on copyright law are a mere hot air?

Recently, a news feature was published by Al Jazeera titled: “Photocopying courts India campus controversy” which was premised on the on-going Indian High Court case of Oxford University Press and Others vs Rameshwari Photocopy Services and Delhi University. In this case, Cambridge University Press (CUP), Oxford University Press (OUP) and Taylor & Francis, the three of the world’s largest publishers have filed a case in court seeking to stop the reproductions of their work into study packs and course packs for students.

Authors and publishers all over the world contend that they fully support free access to information. But they have come to realise that their contended principle of free flow of information must not be confused with the idea of the flow of free information. After all, books, journals, newspapers etc. cost money to produce and the same must apply to the right to reproduce them, particularly through photocopying. The only way authors and publishers have been able to deal with this situation has been through collective administration of rights. It is widely agreed that no single author or publisher can effectively police the use or abuse of its bundle of rights throughout a whole national territory let alone the world at large. Thus, collective administration is a solution devised to overcome the many difficulties which individuals authors and other rights holders face in the enforcement of their rights separately by themselves in the face of fast-growing technologies of the modern world.

In the case of reproduction rights, one of the practical, instrumental and utlity organs in the process of this collective administration is the reprographic rights organisation (RRO). Simply put, the RRO aims to deal with both unauthorised reproduction of copyright works for internal use as well as for the market place. This reproduction is dealt with through licensing. The RRO is therefore an intermediary organisation. It brings the rights holders in contact with the users. It facilitates understanding between the owners and users of copyright rights. Most importantly, it negotiates with, and grants licenses to the users to use the works of authors on the one hand; and on the other, it ensures that authors and publishers are justly remunerated for their works and investments.

This blogger believes that in both the Indian and Kenya scenarios highlighted in the media reports above, the RRO is clearly missing from the picture yet the latter plays an important role in striking the right balance between the rights of the copyright holders on the one hand, and the interests of the users on the other hand. This blogger is indeed surprised that the reprographic society in India (IRRO) has not sought to be enjoined in the Delhi University court case yet it is an interested party given the issues for determination by the judges in that case.

Meanwhile, here in Kenya, we have the Reproduction Rights Society of Kenya (KOPIKEN) which is fully functional but seems not to have attained the critical mass in terms of licensees for reproduction of printed works yet all indications are that the photocopying business is booming in most urban centres countrywide. Regarding the universities in Kenya, this blogger would be correct in stating that over 95% of them are not licensed by KOPIKEN yet these institutions are actively engaged in photocopying both for internal use and also as indirect commercial activity.

Therefore, the time has come for KOPIKEN to assert itself on behalf of all the local and foreign authors, publishers and other rightsholders in the print medium whom they duly represent. Borrowing from the situation in India, this bloggers contends that time has come for KOPIKEN to consider litigation as a means of ensuring compliance with the copyright law, deterring infringers and creating jurisprudence in this silent area of the law. In respect to the last point of jurisprudence, litigation by KOPIKEN against one of the local universities would also allow the courts to revisit the questions surrounding the exceptions and limitations (fair dealing) provisions contained in section 28 of the Copyright Act, particularly as they relate to educational institutions, libraries and archives.