Legal reforms required to bridge gaps in supervision of artistes’ umbrella groups

MP Johnston Sakaja (center) together with various artists addresses the media on January 15, 2016 at National Theatre on allegations of fraud at Music Copyright Society of Kenya (MCSK). MCSK pays composers, authors and publishers royalties. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • The two organisations, together with Kenya Association of Music Producers (Kamp) and the Reprographic Society of Kenya (Kopiken) are called collective management organisations (CMOs) and are licensees of the Kenya Copyright Board (Kecobo).
  • The royalties payable to members are calculated based on size and popularity of each artist’s repertoire.
  • The three music CMOs have been offering a joint licence and levying a joint tariff as from January 1, 2016, to reduce costs and avoid business disruption.

Lately, there has been extensive media coverage on the amounts of royalties the Music Copyright Society of Kenya Ltd (MCSK) and the Performers Rights Society of Kenya (Prisk) pay their members and it is important to clarify the legal position of these organisations and the extent of government regulation.

The two organisations, together with Kenya Association of Music Producers (Kamp) and the Reprographic Society of Kenya (Kopiken) are called collective management organisations (CMOs) and are licensees of the Kenya Copyright Board (Kecobo).

The collective management system is a practical invention established by market realities for better exploitation of copyright.

It is based on the principle that authors hold exclusive rights to their works, which they choose to exercise and exploit individually or collectively.

In the case of many rights, individual exploitation by individual artistes is impossible to contemplate hence collective management has become the norm.

The collective management system is intended to reduce costs that an individual artist would incur managing and collecting their own royalties and creates a one-stop shop for the convenience of users.

Management of rights by the organisations is possible because of assignment of rights by the owner for management.

Rights to foreign copyright works are managed locally due to reciprocal agreements the collecting organisation enters with sister organisations abroad.

The royalties payable to members are calculated based on size and popularity of each artist’s repertoire.

This is reflected in the collective management organisations’ distribution rules approved, published and implemented by those organisations from time to time.

THE REGULATIONS
Part VI of the Copyright Act contains provisions for the establishment and regulation of collective management organisations.

For CMOs to operate in Kenya under Section 46 of the Copyright Act, they require a licence from Kecobo.

A licensed CMO is required to provide financial and operations report annually for renewal of licences.

The law also provides for circumstances that may lead to revocation of a licence held by the CMO.

The board has licensed the four collecting societies; three in the area of music and one in the area of publishing.

The three in the music sector represent composers, authors and publishers (MCSK), producers of music (Kamp) and performers (Prisk).

Anybody using music in a public setting must obtain a licence from the three organisations by paying a fee for public performance.

The three music CMOs have been offering a joint licence and levying a joint tariff as from January 1, 2016, to reduce costs and avoid business disruption.

In the past few years, there has been some progress in making the CMOs more accountable.

More information, including the financial statements and most policy documents, are available on their websites.

In 2014, the board proposed the compulsory requirement of publishing of tariffs in the Kenya Gazette and the possibility of the Attorney-General exempting small and vulnerable users.

PROMOTING REFORM
From the recent events in this sector, it is clear that there are still gaps in the legal framework for oversight that calls for further urgent legal reform.

Some proposals touching on the CMOs will be published on the board’s website in due course for comments.

Thereafter, Kecobo shall hold public consultation before they are enacted.

As noted above, the CMOS are companies limited by guarantee.

While the Registrar of Companies has certain regulatory powers, the ultimate powers rest with the members.

The selection of auditors and approval of terms of members of the board, as well as major policy decisions, are made at the AGM.

Meetings of these CMOs has been wanting and must improve. The conduct of some AGMs has also been called into question.

As we continue on this reform path, artistes and the public are encouraged to utilise the Kecobo complaints procedure, which is available on the board’s website (www.copyright.go.ke).

The writer is the acting chief executive officer of Kecobo. [email protected]