The royalties wars: who is fooling who?

Countless letters and public notices have been issued since this battle began.

The only thing that is clear is that artistes are not being paid as Collective Management Organisations (CMOs) fight over who should be collecting revenue on behalf of artistes.

A ruling made by a three-judge bench in Kakamega occasioned the latest fight. Though the judgment is in black and white, parties from both sides of the aisle have been reading from different scripts.

Amidst the back and forth, artistes and other rights holders have remained a confused lot. Conflicting public notices from both sides of the divide have not given the matter any clarity.

Copyright is a fairly complicated matter that includes overlapping rights in a single piece of music. Most artistes don’t even understand the basics of it leave alone what CMOs are supposed to be doing.

So when these organisations engage in fierce legal battle, with each side claiming to be on the right, the issue becomes even murkier.

The Judiciary had not also been of much help; issuing conflicting orders that did nothing but perpetuate the war.

All the while the media has been caught in between as it reports on the various letters, public notices and court rulings from all quarters.

KAKAMEGA RULING

The Kakamega ruling was a result of an intervention by the Chief Justice, who directed that all three petitions relating to Music Copyright Society of Kenya (MCSK) be combined. One was petition No. 3b of 2017 filed in Kakamega.

Two right holders, Laban Toto Juma and David Amunga, took issue with Kenya Copyright Board (KECOBO) for licensing Music Producers Association of Kenya (MPAKE) to collect royalties and not MCSK.

The second was petition No. 11 of 2017 filed in Kisumu. In this case, Kisumu Bar Owners Association and Kisumu Green Garden Restaurant petitioned against the MCSK for continuing to collect royalties, despite being denied a 2017 license.

In the third petition, No. 15 of 2017 filled in Kisumu, Kennedy Moses Amakoye accused MCSK of ignoring a ruling in Kisumu Petition No. 11 of 2017 restraining it from collecting royalties. They also sort orders compelling MCSK to account for all the money they have collected since they their license ended in December 2016.

Though KECOBO had refused to give MCSK a license to operate in 2017, they had sort a court order under petition No. 3 of 2017 from the high court of Kenya at Kakamega. Issued in April of 2017, the order froze the ban and revoked the license of MPAKE until the matter had been heard and determined.

“I must commend the CJ on consolidating the petitions. For far too long the court system has been used to destroy the music business in this country,” Nairobi based IP Lawyer Gerry Gitonga said then.

“We have had too many conflicting court orders coming from various courts. People have been jumping from one court to another until they find a ruling that favors them. Consolidating the petition was a great move.”

In their final ruling on July 13, the three-judge bench ruled that the license given to MPAKE in 2017 was null and void because it lacked public participation.

Though the court did not address its self to the 2018 license, it did say that KECOBO is at liberty to begin the process afresh if they so wish. The court also directed MCSK to account for all cash collected from January 1, 2017, to date. It also declared all interim orders discharged.

CONTROLLED CATALOGUE

Following the ruling, MCSK published a notice that read in part,

“Kindly note that it is only MCSK that is LEGALLY issuing Copyright Licenses to Broadcast, Perform in Public Places, Communicate to the Public and Mechanically Reproduce Copyrighted musical works in its controlled catalogue (repertoire).”

MCSK claim that they have control of over 100 million copyrighted musical works together with details of over 10 million audiovisual productions from over 14,000 Kenyan copyright owners - musicians (through Deeds of Assignments) and over 120 affiliate (Associate) societies (through Reciprocal Agreements) from across the world.

In response, KECOBO came out with a public notice refuting MCSK’s claims. In their notice they said:

“The public is notified that MCSK is not licensed to collect license fee from users of musical works. The high court in its judgment in consolidated petition No. 3b of 2017 did not grant MCSK the authority to issue copyright licenses to the users of musical works as it is beyond the court’s mandate. Therefore any collection of license fees by MCSK for the use of musical works for now is illegal.”

Gerry Gitonga is an accomplished Intellectual Property lawyer with several years under his belt. Over the years, he has represented some of East Africa’s biggest showbiz stars in various matters concerning intellectual property. He has also been involved in drafting various laws that affect the entertainment industry and has followed these proceedings for a while now. He Said:

“This whole thing is really confusing, especially to members of MCSK who will really suffer if they listen to their leadership. At the end of the day, KECOBO has the mandate to issue the license to whomever they deem fit. Rights holders should register with the licensed body in order to receive their dues.”

Industry players continue to decry the continued infighting between all these parties. Jude Clark is a digital strategist working in artiste development. She is the founder of Alchemy- The Creative’s Sessions; a digital platform that aims to empower creatives. She argues that though MCSK was not perfect, at least there was some money that was coming out. Under the new regime, artistes have suffered greatly as court cases have continued to mar the whole process.

“KECOBO has a mandate to manage the process fairly and efficiently on behalf of copyright holders. Regardless of the reasons why they chose to issue the license to MPAKE over MCSK, they had an implied duty to manage the process in a way which favoured the copyright holders,” she says.

“The long delays with MPAKE’s implementation and court cases are not unpredictable business transition issues. KECOBO should have factored this in and protected copyright holders and license payers.”

On their part, MPAKE admit that due to court cases, they were only able to collect from mid-November till December 31, 2017, for the 2017 financial year calendar, despite having received their license in April 2017.

“An audit was due by June 30, 2018, which has been done. Distribution of 2017 royalties, is due before the end of 2018 and we are on track for that,” a MPAKE official said.

In theory, CMOs are the best way to manage royalties. It is practically impossible for every rights holder to collect royalties from broadcasters, banking halls, bars, hotels and other music users themselves. Though artistes have for many years fought MCSK and sort its replacement, the new arrangement is still not working for them. One can only hope that this saga will somehow end so musicians and other right holders can finally get their long overdue payday.