PART 12 OF 13 REASONS WHY KENYAN MUSIC CREATORS NEED A NEW CMO LAW
We Discuss Why CMOs Need Policy & Regulation in Regard To Complaints & Dispute Resolution
In this twelfth installment of 13 Reasons Why Kenyan Music Creators Need a New CMO Legal Framework we discuss yet another important subject in music. We delve into Complaints & Dispute Resolution for Collective Management Organisations. The Role of Dispute Resolution Policies is discussed and we Explain why CMOs should have a clear Dispute Resolution policy guided by National & International Law in regard to CMO Disputes.
COMPLAINTS & DISPUTE RESOLUTION FOR COLLECTIVE MANAGEMENT OF RIGHTS
We believe it would be to the mutual benefit of CMOs, Rightsholders, Members & Users that clear complaints and dispute resolution procedures are readily available, preferably by electronic means, for disputes between these stakeholders.
To ensure transparency and predictability, we propose that the Kenya and African statutory provisions should provide a standard for the dispute resolution bodies when deciding rate disputes between a CMO and a User/Licensee.
Such a standard could, for instance, be expressed as a “willing buyer, willing seller” test as provided for under the American Copyright Act, or that the tariff should reflect “the value of the use of rights in trade” as per EU Directive 2014/26/EU, Article. 16(2)).
The Music Markets in Africa need to initiate public policy debates on how to adopt either or both in a hybrid approach. African music is now prominent in the American and European Music Markets.
HOW OTHER COUNTRIES HAVE DEALT WITH THESE PROPOSALS
According to Brazilian Law CMOs must establish rules to find expeditious and efficient solutions for cases on conflicts regarding directory information that result in retention of distribution of values to owners of works, interpretations or phonograms.
- CMO should make available to its Members, Rightsholders, and other CMOs with whom they have a Representation Agreement, information on the complaint and dispute resolution procedures, which should clearly describe to whom the complaint should be addressed, at which address (or e-mail address), and describe the timescales and stages of appeal.
- In case of disputes between a CMO and a User/Licensee, parties should be entitled to submit the dispute to a court or an independent dispute resolution body such as the Copyright Disputes Tribunal with expertise in copyright, where it exists.
HOW OTHER COUNTRIES HAVE DEALT WITH THESE PROPOSALS
“The Member States shall ensure that a collective management organization makes public at least the following information: […] the complaint handling and dispute resolution procedures available in accordance with Articles 33, 34 and 35.”
- Member States shall ensure that collective management organisations make available to their members, and to collective management organisations on whose behalf they manage rights under a representation agreement, effective and timely procedures for dealing with complaints, particularly in relation to authorisation to manage rights and termination or withdrawal of rights, membership terms, the collection of amounts due to rightsholders, deductions and distributions.
- Collective management organisations shall respond in writing to complaints by members or by collective management organisations on whose behalf they manage rights under a representation agreement. Where the collective management organisation rejects a complaint, it shall give reasons.” Article 21(1) j), and Article 33, EU Directive 2014/26/EU
“Alternative dispute resolution procedures
- Member States may provide that disputes between collective management organisations, members of collective management organisations, rightsholders or users regarding the provisions of national law adopted pursuant to the requirements of this Directive can be submitted to a rapid, independent and impartial alternative dispute resolution procedure. (…)” Article 34, EU Directive 2014/26/EU
- Member States shall ensure that disputes between collective management organisations and users concerning, in particular, existing, and proposed licensing conditions or a breach of contract can be submitted to a court, or if appropriate, to another independent and impartial dispute resolution body where that body has expertise in intellectual property law.
- Articles 33 and 34 shall be without prejudice to the right of parties to assert and defend their rights by bringing an action before a court.”
CISAC on CMO Disputes
“Each Member shall resolve any dispute which arises between it and:
- One of its Affiliates in accordance with the provisions of its affiliation agreement with such Affiliate and in accordance with the law governing such agreement; and
- Each Sister Society in accordance with the provisions of the contract for the time being in force between
LEGISLATIVE PARTING SHOT
Disputes are inevitable in normal business environments. What distinguishes a progressive business environment, and an inefficient business environment is the degree of efficiency in resolving disputes. The jurisdiction of the Kenya Copyright Tribunal deserves a review.
Concepts such as an ombudsman for Kenyan CMOs must be explored and the idea that Kenyan CMOs must respond in writing must be entrenched into law. Kenya is riddled with several CMO complaints.
Despite CMOs being under a duty to resolve disputes through arbitration, there is no evidence showing that numerous royalty disputes have an arbitration policy to guide the process.
More often than not, the CMO members are forced to abandon claims because the law is silent on the costs associated with arbitration which can be a costly complicated process. Parliament needs to fix this through legislation.