IP: The new world order

Nikita Kering performing at the Blankets and Wine July edition held at the Laureate gardens, Nairobi on 28th July 2024. [Denis Kibuchi, Standard] Having ruled the secular music in the Kenyan industry for over four decades, John Boniface Maina popularly known as JB Maina does not regret abandoning grazing his father's flock in the village and moving into Kenya's capital city to start a music career. He was 15. Between him and fate was a mere Sh300, earned through casual labour accorded to his uncle. Reflecting back on the cold nights he spent in the city streets sleeping among beggers as he sought for a recording stable, the celebrated music composer and singer with over 400 releases paints a picture of a rich music industry riddled with major hurdles. Copyright infringement is a major disease that has killed music generations in Kenya and like many, this is the major battle the music icon has been campaigning against all his career life. One of his popular hits, 'Tiga Kumute,' has been reproduced in countless renditions without his consent. Who even remembers the song was originally his, that even after having copyrighted it under the Kenya Copyright Board, originally then. Elsa Majimbo. [Courtesy] Tired of this intellectual property exploitation partly orchestrated by a lofty music policy in Kenya, JB Maina is reclaiming back the millions through the corridors of justice. After a protracted legal battle, Africa's giant telecommunications company Safaricom reached a Sh15 million settlement with the veteran singer over the alleged use of his 10 songs as ringtones through the firm's 'Skiza' tunes and 'Surf 2 Win Promotion' without his permission. About 15 years ago, he released 'Muiritu Wa Kabete', a popular Benga hit done in his Kikuyu dialect. And as the single wrecked him millions through performances and copy sales, other musicians started singing the song in concerts and other public places posing as the original owners. They too raked in the millions. "I was not getting any financial returns out of these performances. Advertising companies and even ring-back tone music service providers started using the music for commercial purposes. That hurt me and I decided to face it off with them legally. I succeeded," JB Maina told this writer in a past interview. "When people started to produce music in Kenya back in the 1950s, that was the age of the phonography records, an analog music storage vinyl sound that was hard to pirate. To a great extent this flat disc music format made it hard for people to pirate music and again, it helped protect intellectual property as it was hard to duplicate it without having the master disc which would be in safe custody of the music owner. But then in the 1970s and 1980s brought with them the music cassette tape, then came the age of the compact disc (CDs), all of which are easy to pirate. Now with music stored in so many formats, technology gas made it easy for people to download music illegally. Pirated music is being shared widely and cheaply online, with enforcement efforts struggling to keep up. This raises concerns about the effectiveness of existing copyright laws, the will and ability to enforce them, and whether the public understands that such content is legally protected," JB Maina laments of an industry that saw music piracy increase by 59.2 million visits to sites in Kenya, according to International Federation of the Phonographic Industry (IFPI) report released in 2023. From musicians, filmmakers, photographers, painters, visual artists to craftsmen, thousands of creatives continue to languish in poverty in a multimillion art, recreation and entertainment industry that accounts for five per cent of the Gross Domestic Product (GDP) and 0.25 per cent of the total wage employment - according to Kenya's Economy Survey Report 2025. Indeed, the 2024 IFPI report has it that Sub-Saharan Africa's recorded music market saw a significant boost in 2024, with revenues reaching US$110 (Sh14b) million - this being the first time surpassing the US$100 million mark. Comedian Butita and Comedian Njugush during the Hello Mr Right season 3 show's launch in Radisson Blu ,Upperhill on 14th April 2023. [David Gichuru,Standard] In the lead was South Africa, Nigeria and Kenya that begging the question as to why a Kenyan music sector that is supporting over 300,000 jobs and measuring among the top most growing creative economies in Africa continue to be a frustrating venture for the 'real' creatives in the business? Over the years the government of Kenya, through the Kenya Copyright Board (Kecobo), the state corporation entrusted with administering and enforcing copyright and related rights in the country has made efforts in carrying public awareness, enforcement and registration of copyright, licensing of collective management organisations (CMOs) and giving education on matters of copyright and related rights in various sectors across the country. This year, the body has been carrying training sessions with creatives and law enforcement officers on copyright infringement, a drive aimed at enhancing the protection of intellectual property rights among creatives. "Through this capacity-building program, Kecobo reaffirms its commitment to promoting a fair and secure environment for creatives, ensuring they fully benefit from their intellectual property, the Acting Executive Director, Kecobo George Nyakweba said during one of the workshops in March. The intellectual property rights training workshops have been making emphasis on the common protected rights; from patents, copyrights, trademarks, industrial designs, trade secrets and utility models. "Creatives must learn to patent their original creations as this grants them the exclusive rights to their original creative works, that preventing others from making, using, or selling the invention for a limited period, usually 20 years from the filing date. When it comes to copyrights, this refers to the protection of original literary, artistic, and musical works, giving creators the right to control the use and distribution of their creations," said one of the trainers adding that trademarks safeguard symbols, names, and slogans used to identify goods or services, ensuring consumers can distinguish between different products in the market. Ignorance in ensuring that their original artistic and music works are copyrighted has been one of the major hindrances in fighting the war against copyright infringement in Kenya. Many artistes don't copyright or patent their work and that is how they end up being exploited. Many think protecting their work by copyrighting and patenting is a complicated duty. It is not. It is as simple as ensuring what puts food on the table is safeguarded. With the 2010 Constitution having embedding IP rights in Article 11, speakers at the World Intellectual Property Day praised the government for tackling digital piracy and offering musicians and filmmakers tools to combat unauthorised use of their work. Kecobo announced a major breakthrough in combating digital piracy noting that its anti-piracy operations had dismantled networks distributing pirated music and films, having seized over 500,000 counterfeit DVDs and digital devices in 2023 alone. However, even with the new developments by the government and other stakeholders to enforce laws and policies to compact copyright infringement in the creative sector, it is the same government systems and creatives organizations that have been blamed for the losses creatives have been making as giant bodies fight over their intellectual property. A fierce battle has been ensuing between the artistes' collective management organizations (CMOs) and the copyright regulator, Kecobo, over royalties payment issues to rights owners. An endless court war between the two has seen millions of creatives money go into the drain - even as scrupulous individuals and groups take advantage of the void. Having dominated the CMOs scene for years, the three giant artistes royalties collection bodies in Kenya, namely MCSK, KAMP and PRISK were deregistered by Kecobo with the regulator claiming the three had failed to meet the stringent conditions stipulated in the provisional licenses set out by the Kecobo directors. "During its meeting held on August 11, 2021, the Board took note of the recent distribution of royalties where the CMOs reportedly distributed Sh41 million (35.9 percent) instead of Sh79 million (70 percent) out of Sh114 m collected at the end of July 2021 in defiance to the Kecobo license conditions. From reports of distribution from two entities received so far, PRISK allocated a further Sh4 million while KAMP made an allocation of Sh1.2 million from their allocation of Sh10 million and Sh8 million respectively to cater for administrative costs," the Kecobo board claimed before handing over the rights collection license to a new outfit named the Performing and Audio-Visual Rights Society of Kenya (PAVRISK) to oversee music and performer rights. That was mid last year. "If the intellectual properties issues troubling the creative sector in Kenya are to truly be sorted, this this must start with sorting the mess between Kecobo and CMOs. Artists can't truly have a voice on their copyright issues if the bodies mandated to regulate their matters and those collecting the finances from their copyright properties are not working in harmony," says Ben Kioko, a stakeholder in the music sector. "It is true there has been a continued understanding among creatives on how to protect their work. There has been more awareness on intellectual property ussies through artistes workshops in the past years and artistes are now pushing for policies on the same to be enforced. The government has also mainstreamed the creative economy by recognizing creatives, including digital content creators as it pushes for the protection of their work as well as giving it value as it works with stakeholders like YouTube and X where many young Kenyan creators are making a living through," says popular Kenyan artiste Frasha Amisi as he notes the impressive involvement of Kenyan artists in international platform like Nikita Kering, an award-wining rising star who recently represented Kenyan creatives at the African Union meeting. Kenya is now among the top nations in the world that use TikTok with reports showing that at least the users concentrates 54 percent of TikTok usage for any purpose and 29 for news. The vibrant social media space minting millions for influencers such as Njugush, Wabosha Maxine, Eddie Butita and Elsa Majimbo, on YouTube, TikTok and Instagram. To them making social media skits is a lifestyle. They do it effortlessly. And it pays handsomely. Intellectual property rights are no doubt crucial for protecting the work of these social media creatives in the country as intellectual property rights are crucial for protecting innovation, enhancing trust and ensuring fair competition. These upcoming creatives are part of the new revolution demystifying intellectual property issues and pushing for reforms in the sector even as their leverage on technology to connect to the wider global audience. In Kenya, the use of social media for content creation his on an all time high this with YouTube, WhatsApp, X and Facebook dominance. With internet access growing, the youth who make up to 60 percent of the population are applying technology to make online film skits, dance routines as well as hilarious content channels that they are now monetizing. It is for this reason why Kecobo and other industry players have increased training on the intersection of intellectual property and social media, most so on image rights and the legal framework surrounding AI as well as VR. This year, for example, social media trends have strongly centered on a strong focus on intellectual property protection and social commerce as well as content creators and influencers. Increased short-form video content as well as the use of AI in content creation makes is crucial for protecting original works. Now, in Kenya, social media platforms are implementing tools to detect and address infringement. The new social media platforms have had to create increased awareness and enforcement to protect intellectual property rights this by employing tools such as copyright infringement detection systems. "It is paramount that creatives and generally all forms of businesses that use social media should have a good understanding of copyright and trademark laws so as to avoid legal issues. It is the case with influencer marketing where influencers play a key role in marketing brands where legitimacy in the products they market is key. However, with all the efforts channeled towards this, still legal frameworks and social content marketing still poses challenges when it comes to intellectual property enforcement. The fact remains that intellectual remains deeply infused into our everyday life. From the software on our phone to the fashion we style. It is the real journey of life, socially and economically.

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