#ipkenya Weekly Dozen: 27/07

CISAC AFRICA COMMITTEE REGION 2018 DjGrq71XsAA8DYh

  • Improving creators’ royalty collections in Africa: CMOs gather in Abidjan for CISAC’s Africa Committee [Official]
  • Figures of the week: Africa’s energy innovation landscape [Brookings]
  • 5th Global Congress on IP and the Public Interest, Sept 27-29 Washington DC [Register Now]
  • Nigeria announces national airline, didn’t register domain names [iAfrikan]
  • South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World [InfoJustice]
  • Kenya: MCSK asks MPAKE to stop collecting royalties [Pot Calling Kettle]
  • Africa Has an ‘Uber’ Opportunity to Disrupt Farming Technology [AGRA]
  • Poor e-commerce policies slow the uptake in Africa [The Star]
  • How broke public universities can change fortunes [Captain Obvious]
  • Does the fourth industrial revolution call for a sui generis form of IP protection? [A+ Bunch of Lawyers]
  • Comesa to set up team on digital free trade area [East African]
  • Time for a Sui Generis Technology Importation Right? [Afro-IP]

For more news stories and developments, please check out #ipkenya on twitter and feel free to share any other intellectual property-related items that you may come across.

Have a great week-end!

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

UKIPO-Copyright-Law-iplogium-1

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.

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Law Society of Kenya Article Review: “Copyright Protection for Foreign Works in Kenya”

We are pleased to have come across a solitary article on Intellectual Property (IP) in the recent Law Society of Kenya Journal Volume 9(2) of 2013. This article is titled “Copyright Protection for Foreign Works in Kenya” and was authored by Mr. Wilfred Lusi.

From the outset, the article appears to be premised on the problematic assumption that foreign works do not enjoy copyright protection in Kenya. Take for instance the first paragraph which reads: “The discussion herein is limited to exploring the significance of extending appropriate copyright protection to foreign works…”

In addition, the article fails to distinguish which category of copyright works will be examined in the article. Despite this lack of focus, a cursory reading of the article reveals that the main works primarily considered by the author were audio-visual and musical works. There also appears to be no distinction drawn in the article between copyright and related rights in foreign works. This blogger respectfully argues that this last distinction would have proved useful particularly from the perspective of administration of rights and enforcement of rights.

Read the rest of this article here.

Balamine Ouattara: New Regional Director for African Copyright Societies

Balamine Ouattara BBDA

CISAC, the International Confederation of Societies of Authors and Composers, works towards increased recognition and protection of creators’ rights. CISAC was founded in 1926 and is a non-governmental, non-profit organisation. Its headquarters are in Paris, with regional offices in Budapest, Santiago de Chile, Johannesburg and Singapore.

CISAC now reports that Mr. Balamine Ouattara has joined CISAC Secretariat as the new Regional Director for Africa. Ouattara has previously served on the CISAC Board, the CISAC African Regional Committee and at the helm of the Bureau Burkinabé du Droit d’Auteur (BBDA).

Ouattara’s goal is to establish the new CISAC Regional Office with a transfer from Johannesburg, South Africa (where his predecessor Mr. Robert Hooijer was based) to Ouagadougou, Burkina Faso. In his new role, he will cover 35 Member Societies operating in Africa, including the Music Copyright Society of Kenya (MCSK) and is going to work toward the creation and implementation of new offices in Africa.

Félicitations M. Ouattara pour sa nomination au poste de Directeur des affaires Africaines à la Confédération internationale des sociétés d’auteurs et compositeurs (CISAC)!

In his first official message to the Heads of African Copyright Societies, Ouattara says in part:

“Dear colleagues,

As you know by the message of Mr. Olivier Hinnewinkel, General Manager of the International Confederation of Societies of Authors and Composers (CISAC) I am honored to assume function of Africa Regional Director of CISAC (ARD/CISAC), since March 1, 2013. I therefore replace to this position, Mr. Robert Hooijer to whom I pay tribute for the enormous contribution he brought to Africa for the development of the sector of ​​literary and artistic property. On behalf of all, I say to him thanks again.
(…)
I arrive to this important post when Africa of copyright and collective management is faced with huge challenges, including those relating to rising of its perception rate (0.6% of the the global collect), the narrowness of its market of copyright in the global space and the need to improve the functionality of its network of Collecting Societies are not slightest.

However, I keep with you, the hope the possibility of emergence of a true African Copyright and Collective Management. To do this we need more vision, organization, boldness, conviction and commitment. These qualities, we have it all and even more in terms of capacity and potentialities. That is why I remain convinced and optimistic that with the help of each of you, we will advance more African of copyright and collective management.”

A Tale of Two Conflicting Collective Management Organisations in Nigeria

mcsn-coson-nigeria-music-copyright

The Nigerian film industry (‘Nollywood’) is arguably one of the largest in the world, while the music industry is not far off; both estimated to be worth well over $2bn in annual net revenue.

Last week, this blogger highlighted a story by Punch Magazine from Nigeria on one of Nigeria’s most internationally acclaimed musical duos: “P-Square”. The relevant bit of that article reads:

““P-Square and our companies, Square Records and Northside Entertainment, have not joined any collecting society because we don’t want to give any organisation the power to collect royalties on our behalf without showing a keen interest in solving our greatest problem, which is piracy. It doesn’t make sense.

“I’m not against any collecting society. But come to me as an approved body recognised by the government to fight piracy and I will carry you on my shoulder because I know there will be more money at the end of the day for me. Also, I would know that my future is guaranteed.””

Assuming P-Square opted for collective administration of their rights under copyright, they would be faced with a dilemma over which collecting society to join. This dilemma exists because Nigeria currently has two rival entities, both purporting to represent the musicians of Nigeria, namely: Musical Copyright Society Nigeria (MCSN) and Copyright Society of Nigeria (COSON).

Once upon a time, MCSN was the government-sanctioned collecting society or collective management organisation (CMO) in Nigeria representing authors of musical works. This all changed circa 2009 when COSON was born and got sole approval from the Federal Government to operate as the recognised CMO for both authors of musical works and owners of sound recordings. According to COSON, their existence came about as an effort to “have one formidable national collective management organization to promote and protect the copyright of practitioners in the Nigerian music industry.”
COSON states that it was Nigerian Music Industry Coalition in 2009 that resolved to form COSON. COSON chairman explains this resolve as follows:

“What we have set out to do is to sing with one voice and end the divide and rule game which the powerful users of music have deployed for many years to pauperize musicians and the music industry in our country. Every reasonable person in our industry has long understood that with collective management, together we stand, divided we fall.”

In a 2010 ruling of Nigeria’s Court of Appeal in the case of Musical Copyright Society Nigeria [MCSN] v Compact Disc Technologies & others, it was held that MCSN has no locus standi to institute the action as owner, assignee and exclusive licensee unless it is registered as a collecting society in compliance with the Copyright Act 2004.


MCSN was incorporated and has been operating since July 20, 1984 ( a year after our MCSK’s own birth date). Although MCSN is not licensed to operate as CMO in Nigeria, it remains a formidable “association” given that it is the owner, assignee and exclusive licensee of a vast repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN.

Meanwhile, there is COSON, the government approved CMO that in recent years has been working hard to establish itself as the sole CMO in Nigeria’s music industry. Along with MCSN, COSON is also a member of CISAC.

The government, through the Nigeria Copyright Commission, has actively cracked down on the activities of MCSN, which the former claims are “illegal” as the latter is not registered as a collecting society. Last year, the Federal High Court ruled in MCSN’s favour in the case of the Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC] FHC/L/CS/35/08 where it reprimanded the NCC for acting outside the confines of both copyright law and constitutional law.

This month, the Nigerian media reported that MCSN went back to the High Court in Suit No. FHC/L/CS/1163/12, seeking N100 million as damages against the Nigerian Copyright Commission (NCC) and four others resulting from a raid carried out by the latter.

Comment:

Similar to Kenya’s Copyright Act, section 32B(3) of Nigeria’s Copyright Act is clear that: “The Council shall not approve another Society in respect of any class of copyright owners if it adequately protects the interests of that class of copyright owners.” This blogger has argued elsewhere that one society per class of rights is indeed the best way to go. However, the current state of confusion in Nigeria should be a cause for concern here in Kenya since we wish to ensure that our interests are adequately represented in Nigeria and the converse to apply here in Kenya.

Currently, Kenya, through the Music Copyright Society of Kenya (MCSK) has a reciprocal agreement with MCSN signed in 2005. This reciprocal agreement is an exclusive license in respect to public performing rights of the works forming part of the repertoires of the two societies.

Two concerns arise:

1. Seeing as MCSN is no longer recognised under copyright law as a collecting society or CMO for the music industry in Nigeria, does this mean that MCSK’s interests in Nigeria and Nigeria’s interests here in Kenya are unfavourably affected in a manner that interferes with the enjoyment and/or exercise of the patrimonial rights of the holders of the copyrights being administered? In other words, has the current agreement between MCSK and MCSN automatically fallen away due to the factual and legal situation of the latter?

2. Should MCSK consider signing with COSON? If indeed this option is being considered, has COSON given MCSK any indications as to the scope of its repertoire? i.e MCSK already has significant repertoire to give to COSON but the former may need to have some basic assurance that COSON actually hold both performing and mechanical rights assignments for the world from Nigeria authors/composers/publishers of music.

In short, let’s wait and see how these music copyright issues play out. Esteemed readers, the floor is now yours.

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