A recent ruling made by Lady Justice Hedwig Imbosa Ong’udi of the High Court in Nairobi has left Kenyan musicians in a murkier situation than they had hoped, as the disbursement of royalties worth KES 6 Billion annually has been suspended. The ruling ironically was to settle a legal dispute between KECOBO and three CMOs which collect and remit royalties to artists. This situation personifies the proverbial hurting grass, whenever two bulls face off.
The ruling made at the beginning of November invalidated the operating licenses of collective management organizations (CMOs) issued by the Kenya Copyright Board (Kecobo), with the judge citing a lack of quorum as the main reason the decisions taken by Kecobo Executive Director Edward Sigei as unlawful. Mr Sigei is at fault for issuing the licenses without the board having a quorum of fewer than seven members, including the chairman or the person presiding.
The judge also found that there is no legal provision that grants the executive director the authority to make the board’s decision. Referring to Section 5 of the Copyright Act, outlines the functions of the board including licensing and supervising the activities of CMOs. He ordered Kecobo to stop issuing any licenses to CMOs until a board is properly constituted as per the same act.
The Kenya Copyright Board(KECOBO), is a state corporation under the Ministry of Youth Affairs, Sports and the Arts. KECOBO was established by section 3 of the Copyright Act 2001, which went into effect on July 1 of the same year. The body’s mandate is to administer and enforce copyright and related rights in Kenya, as well as to organize legislation, conduct training, enlighten and inform the public, license and supervise collective management organizations (CMOs), and maintain an effective databank on authors and their works.KECOBO is also responsible for ensuring the protection of traditional knowledge and traditional cultural expressions, which are recognized as part of the intellectual property rights in Kenya.
KECOBO is governed by a board of directors, which consists of nine members drawn from both the public and private sectors, as provided by section 6 of the Copyright Act. The chairman is appointed by the President, while the executive director is a member and secretary to the board.
Why The Ruling Is Problematic
On the one hand, the ruling is a reprieve for the CMOs, who are in a battle to defend their forte as KECOBO has been trying to take over the administration of the Blank Tape/Media Levy from the CMOs, which are the authorized agents of the rights holders. The CMOs include the Performers Rights Society of Kenya (PRISK), the Music Copyright Society of Kenya (MCSK), and the Kenya Association of Music Producers (KAMP). On the other hand, the ruling has effectively halted the payments the CMOs make to artists, as they can now not operate.
The Blank Tape/Media Levy is a fee charged on blank tapes, CDs, DVDs, memory cards, and other devices that can be used to store or reproduce music or audiovisual works. The levy is meant to compensate the rights holders for the potential loss of income due to piracy or private copying. Conservative estimates from the CMO representatives, quote a figure of KES 6 billion annually if collection was to be properly implemented. This would be a significant source of income for Kenyan artists and producers.
The Cabinet Secretary for Youth, Sports and the Arts-Mr. Ababu Namwamba waded into the issue, coming out in support of the CMOs. In a letter addressed to Mr.Edward Sigei, dated November 10 2023, the CS directs Kecobo to transfer the levy funds they hold to the CMOs. The letter also warns Kecobo against interfering with the operations of the CMOs or imposing any conditions on them. The ruling might be bittersweet for the CMOs, but all gory for artists, whose reception of royalties now remains in limbo.
The fresh issues facing KECOBO will further have a negative impact on Kenyan artists who are struggling to survive in an industry plagued by a litany of problems. The cancellation of the CMOs’ licenses by the court could disrupt the collection and distribution of the Blank Tape/Media Levy, which is a significant source of income for Kenyan artists and producers. The artists are further losing trust and confidence in the systems laid in place to give them their due, as both KECOBO and the CMOs who are their representatives and agents, are inefficient at best, but really incompetent and uncaring both of the artistes and of due procedures.
