This week, Kenya Copyright Board (KECOBO) has published a set of draft amendments on collective management organisations (CMOs) available here. KECOBO has requested the public to give comments on these ISP provisions through the email account: email@example.com. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am. This blogpost is a commentary of the key features of the draft CMO provisions from KECOBO.
This blogger has recently come across a judgment by the Court of Appeal in Nigeria in the long-running case of MCSN v. Details (Nig.) Ltd (CA/L/506/1999). In this case an exparte order had been obtained by MCSN against Details for unauthorized use of musical works. Details raised objections on the ground that MCSK lacked locus standi to bring the action. Details noted that since MCSN had provided evidence that it represented more than two million artistes, it was practically performing the functions of a collecting society and therefore required the approval of the Nigerian Copyright Commission (NCC) to carry on the activities of a collecting society.
MCSN denied suing as a collecting society but rather as an owner, assignee and exclusive licensee as contemplated in Section 15 of the Act. Having considered all the evidence, inclusive of the deed of assignments executed with members of MCSN which clearly spelt out that the activities to be undertaken were those within the purview of the attributes of a collecting society, the court ruled that: “it is for the foregoing reasons that I have come to the inexorable conclusion, after deep reflection, that the plaintiff is a collecting society. Not having been registered pursuant to Section 32B(4) of the Copyright Act, it cannot be permitted to operate as such body. To do so would be tantamount to subverting not only the letter but also the spirit of the copyright laws of this country”.
The High Court of Kenya sitting at Nakuru has recently handed down an interesting judgment in the case of Republic v Kenya Association of Music Producers (KAMP) & another Ex-Parte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (Suing Through Their Trustees)  eKLR. A copy of the judgment is available here. In this case, Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association sought judicial review orders of prohibition to restrain two collective management organisations (CMOs) from collecting licence fees and or levies from the membership of the Association. The CMOs in question: Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK), two related rights CMOs representing owners of sound recordings and performers respectively.
The crux of the Association’s case against the CMOs is as follows:
“It is argued that the proposed levies and licences were never communicated to their association or any of the members, and that as they were not notified, or invited to participate in their formulation and approval nor gazetted/published, the Respondents [CMOs] failed in their duty to communicate the passage and approval of the levies to them, they are in breach of rules of natural justice by withholding information that would affect them economically and financially and a breach of their constitutional rights as enshrined in Article 43 of the Constitution. (…)”
The fees payable to the Kenya Copyright Board are only going up by “this much”
The Honourable Attorney General (pictured above) in exercise of the powers conferred by section 49 of the Copyright Act has made new regulations.
Contrary to the picture caption above, the thrust of these new regulations is a substantial increase in the fees for applications for registration and renewal of registration of a collecting society.
Along with KECOBO’s bad decision not to attend the interview, this blogger was left with several other questions after watching the above full length video clip.
1. Was there any mention or explanation of KECOBO’s role as regulator of collective management organisations (CMOs)? And how this role could impact both positively and negatively on the music industry?
2. Was there a clear distinction made between:
– the benefits of depositing one’s work at KECOBO for registration?
– the benefits of declaring one’s work at a CMO for purposes of membership (which may entail further entitlements such as royalties, centralised rights clearances and policing of rights)?
3. Was the issue of the internet as a double-edged sword (music distribution vs music piracy) addressed (as brilliantly brought out in the Salif Keita clip)?
4. Was there any mention of the role of KECOBO in fighting piracy through enforcement actions and prosecutions arising from the various offences created under the Copyright Act? And how this role could impact both positively and negatively on the music industry?
5. Is “having one CMO” (whatever that means) the only solution available to the current problem of unlawful competition and unethical practices among the three music CMOs?
Today IPKenya came across this story in the Bahamas Tribune about the Bahamas Copyright Royalty Tribunal titled “Copyright Holders Recieve ‘Not One Cent’ in 11 Years” and the opening paragraph summarises the article as follows:
“”NOT one single cent” has been paid by the fund set up 11 years ago by the Bahamas to compensate intellectual property rights holders, Tribune Business can reveal, due to the absence of a regulatory regime that stipulates payment rates.”
Immediately one is reminded of Kenya’s own challenges with fees collection and royalty payments, best exemplified by Music Copyright Society of Kenya (MCSK).
As you know, an ugly row took centre stage last year after KECOBO deregistered MCSK as a collective management organisation (CMO) acting on behalf of authors and composers of music primarily because MCSK’s operational costs were too high compared to the royalties it pays musicians. For instance, MCSK’s expenses stood at Sh137 million in the year to June 2010 against revenues of Sh185 million, leaving it with a surplus of Sh48 million or 25 per cent of its collections, which are supposed to go to musicians. Meanwhile KECOBO maintained that the guidelines for CMOs clearly stated that only 30% of monies received can be spent on administrative costs and the remaining 70% must be distributed among musicians as royalties. As the financial books showed, MCSK was doing quite the opposite: distributing 30% and spending 70%, notwithstanding the large number of complaints over unpaid royalties from musicians.