Police boss's directive has cost musicians millions of shillings

The

Inspector General Police Service Hillary Mutyambai [Edward Kiplimo, Standard]

Kenyan copyright sector losses millions of shillings due to weak enforcement mechanisms.

This has been aggravated by a directive by the Inspector General of Police instructing police officers to stop supporting the Collective Management Organisations (CMOs) by enforcing compliance to the Copyright Act.

This directive and the Covid-19 pandemic have frustrated royalty collection efforts, making our revenues to drop by a whopping 70 per cent in 2020. The prospects in 2021 remain hazy. In Kenya and other developing countries, copyright compliance is the exception rather than the norm.

Where compliance and respect of intellectual property is low, copyright owners require the help of National Police Service (NPS) for the public to comply as provided under articles 11 and 40(5) of the Constitution, Copyright Act, copyright regulations and other related laws.

Small business players, including matatu industry, rarely comply with this requirement. This contrasts sharply with developed countries' where high compliance levels has given rise to flourishing creative sector industries that contribute billions of dollars to their economies.

The directive by the IG was based on a misrepresentation of how the CMOs work. At the very core of all copyright law is the concept that if you have created or produced a song (music, lyrics and/or sound recordings), you are considered its legal owner and have the sole and exclusive right to decide how that property can be used, reproduced, monetised and shared by others. However, an artiste may not be in a position to monitor and track how his/her work is being exploited in a complicated environment where such works are simultaneously used in various platforms such as radio, television, internet, performances in public places, among others.

To help individual owners of music/sound recordings exploit their creations/productions, the law allows them to band together under CMOs. A CMO is then given exclusive mandate to act on behalf of individual rights holders. Under this arrangement, a CMO has authority to licence and collect the remuneration from the licencees as well as distribute royalties to its members.

To date, the system of collective administration remains an indispensable and effective means of bridging the gap between rights holders and users of copyright works. By assigning the responsibility of rights management to CMOs, rights holders have more time to concentrate in creating more works. In Kenya, the Kenya Association of Music Producers, Performers’ Rights Society of Kenya and the Music Copyright Society of Kenya are registered and licenced as Collective Management Organisations (CMOs) under Section 46 of The Copyright Act, Laws of Kenya.

CMOs have also been tasked with the responsibility of monitoring the exploitation of licenced works. Where infringement occurs, the CMOs are mandated to invoke criminal and civil remedies. This is why Section 42 of the Copyright Act empowers the police to arrest, without a warrant, any person suspected, upon reasonable grounds, of having infringed on copyright.

The CMOs, as part of their official published licencing procedures, refer to the police all documented cases of non-compliance for the necessary enforcement. Prior to the 2019 police enforcement freeze, the three collective management organisations enjoyed excellent cooperation from the police, leading to high revenue collections. This translated to higher royalties to artistes, producers and authors of music.  

It is an open secret that the music industry has significant potential as a contributor to economic and social growth as encapsulated in President Uhuru Kenyatta’s Big Four Agenda, Vision 2030, the East Africa Community’s Vision 2050 and Africa Union’s Agenda 2063. In this regard, the IG should consider reinstating police services to support copyright enforcement efforts

Mr Karani is the chair, Kenya Association of Music Producers