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Blank Tape Levy Dispute: Impact on Kenyan Artists & Copyright Rights
By George Robert Asewe
Founder The Music Advocate Africa
Kenyan music artists Reuben Kigame, Celestine Wambui Mbogo, and Stanley Ahoya have taken legal action by moving to the High Court of Kenya to challenge a section of the Kenya Copyright Act that denies them and several Kenyan artists the benefits attached to the Blank Tape Levy royalty systems. They have sued various government entities and collective management organizations, highlighting the importance of fair compensation for artists and rights holders in the music industry. The Performing Rights Society of Kenya (PRISK) which changed its name to Performing Audiovisual Rights Society of Kenya (PAVRISK) is named as the first intrested party.
The Music Copyright Society of Kenya (MCSK) is named as the second interested party while the third interested party is the Kenya Association of Music Producers (KAMP). Since 2023 when the dispute was filed at the High Court of Kenya there is no resolution of the dispute as at the date of publishing this article. Ultimately, this is a statutory issue that will have to be resolved by the Kenya Parliament. MCSK represents the right of Music Authors & Publishers while KAMP represents the rights of Music Producers in Kenya. PRISK now PAVRISK represents the rights of music performers and actors in Kenya. The artists have sued The Kenya Copyright Board which is the government body responsible for regulating and registering copyright in Kenya. They have also sued the Kenya Revenue Authority that is the taxman. The Attorney General of Kenya, Kenya Trade Network and The Cabinet Secretary Youth Sports & Arts have also been sued bring the total number of government Respondents to 5.
Blank Tape is a Compensation Mechanism for Artists Globally
The Blank Tape Levy, also known as the Private Copying Levy, is a system designed to compensate artists and rights holders for potential revenue lost due to private copying of copyrighted material. This system imposes a levy on blank recording media sold to consumers, with the collected funds distributed to eligible creators as a form of compensation for the private copying of their works. Examples of media attracting this levy include mobile phones, laptops, smart TVs, books, USB external hard drives etc. Essentially anything that can be used to copy, store and play music, video or display books and other visual mediums.
Europe has implemented the levy since the 1960’s
The concept of the Blank Tape Levy originated in Europe in the 1960s as a response to the proliferation of cassette tapes and other recording technologies. Countries such as Germany, France, and the Netherlands were pioneers in implementing legislation to establish the Blank Tape Levy system. Germany was the first country to implement the system. Over time, this system has expanded to encompass various forms of recording media and technology to address the challenges posed by digital piracy and unauthorised copying.
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In Africa, several countries have ratified and implemented treaties related to Blank Tape Levy, recognising the importance of providing fair compensation to artists and rights holders for the private copying of their works. Kenya, South Africa, Nigeria, and Ghana are among several other African nations that have embraced the Blank Tape Levy system to support their creative industries and protect the rights of creators. However, the African Union has not succeeded in developing a continental African framework for ensuring all African countries implement the system seamless. Most countries are at different stages of implementation.
Items such as laptops, external hard drives attract a levy that can only be effectively collected by the Kenya Revenue Authority.
Implementation of The Blank Tape Levy Will Introduce Incentive’s To The Kenya Creative Economy
Blank Tape Levies play a crucial role in enhancing the income of artists and rights holders affected by copyright infringement. By ensuring that creators receive compensation for private copying, Blank Tape Levies help to support a sustainable creative ecosystem and incentives for continued artistic production.
Kenya’s denial of certain categories of copyright rights holders their entitlement to the Blank Tape Levy undermines the financial stability of artists and creators who depend on these royalties as a source of income. Amending the Copyright Act to rectify this omission is essential to ensure that all creators are fairly compensated for the use of their works and to promote a thriving creative industry in Kenya. There is no evidence available to show why certain rights holders in copyright are denied the benefit yet its a compensation that should be applied to all affected stakeholders. Unfortunately Kenya hasn’t set up collective management organisations for visual rights artists, audiovisual rights holders, book authors and writers. Without CMOs for these rights holders, distribution of this kind of royalty will be a next to impossible task.
The levy will be one of the biggest incentive boosts in the royalty income system for all registered artists in Africa. Kenya should therefore lead in its implementation domestically.
By implementing the Blank Tape Levy system in the economy, the Kenyan government stands to benefit from increased tax revenue generated from the sale of recording media. This additional revenue can contribute to the growth of the creative industry, support local talent development, and strengthen the overall economy.
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Collective Management Organisations (CMOs) play a critical role in collecting and distributing Blank Tape Levies to eligible artists and rights holders. These organisations help to ensure that creators receive their fair share of royalties and that copyright rights are protected and enforced. The state’s role in safeguarding creator rights is crucial for maintaining a vibrant creative sector and promoting cultural diversity in Kenya and beyond
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