How Kenya is making the breakthrough in fighting piracy through strategic creative industry collaboration despite a difficult cyber operating environment.

Partners Against Piracy (PAP) Kenyan chapter partners pose for a group photo during the World Intellectual Property Day event which was held at Multichoice Studios in Nairobi on Tuesday 26th April, 2022. Copyright property of PAP Facebook page

Intellectual Property (IP) is a property just like land. IP gives the owner exclusive rights to determine how their property is used. Just as a landlord has the right to control how tenants use their property that is the same way IP enables owners of music, film, books, images designs, & software to determine use of their property. Unfortunately for many creators, piracy continues to affect the ability of IP owners to earn income from their work. Piracy is a crime that involves the unauthorized acquisition, use, sharing, or selling of copyright-related content.  Piracy is theft. If you download music or film from websites not authorized by copyright owners, you may just be helping terrorists and crime syndicates raise money for their illegal activities.

According to Partners Against Piracy (PAP), content piracy is practiced by terrorists and crime syndicates. PAP is a Kenyan Association comprising various creative industry stakeholders like Multichoice, Bernsoft, Phat Music Africa, My Movies Africa by Yakwetu, Art at Work, Boomplay, Sol Generation, The Music Advocate Africa, Creative Society of Kenya, IPO Kenya, Mugenge2RU (Nonini), KECOBO, KFC & other corporates who have teamed up to lead efforts to fight piracy in Kenya and Africa.

According to Micheal Strano, the interim convener of PAP, there is evidence indicating that Kenya is losing two hundred and fifty-four million every day. This is approximately $2.2 million dollars.  If this money was to be channeled back into the economy in the form of structured grants to the creative economy startups, we can create up to 235 new creative enterprises every day in the 47 counties each with a net worth of approximately 1 million shillings.

Mike Strano alongside Davidson Dng Ngibuini. Copyright property of Mike Strano Facebook page.

Kenya is losing two hundred and fifty-two million Kenya shillings every day to piracy. This is approximately $2.2 million dollars everyday.

We at the Music Advocate Africa believe that without a grants system financed by the state, it will be difficult to make strides in the cultural industries. Any political movement seeking to change fortunes for the youth and creative industry can’t ignore the attractive proposition fighting piracy presents. It’s a sure bet to raise the fortunes of the creative sector.

Indeed, the Kenya government must be lauded for its efforts to fight piracy. The president has signed into law various legislative prescriptions aimed at curbing piracy. A section of Kenyan legislators led by the likes of progressive Member of Parliament Suba North Hon. Odhiambo Millie Grace Akoth in early 2022 led The Kenyan National Assembly in rejecting a proposed amendment to section 35 of the Kenyan Copyright Act which gives copyright owners the right to issue takedown notices to internet service providers like Safaricom & Telecom Kenya. Take down notices give copyright owners the power to demand ISPs not to give internet access to websites promoting illegal downloads. The Amendment that was introduced by Hon. Alice Wanaga the Orange Democratic Movement Member of Parliament for Homabay. Had it passed it could have reduced the gains that Kenya made in 2019.

Our History With Section 35 of The Kenya Copyright Act

In 2019, The Music Advocate Africa in partnership with The Intellectual Property Association settled a lawsuit that they instigated against the Attorney General & various internet service providers (ISPs) including Safaricom. The move was informed by the fact that the government put into action our proposal that ISPs should actively join the fight against piracy. Our argument was simple. ISPs have the power and capacity to prevent piracy. They have the ability to block access to these infringing sites. We support the move by PAP to build broader industry consensus.  

In our view, the Kenya government deserves accolades for the manner in which it is handling the fight against piracy. Don’t get me wrong. We are still far from defeating this monster. According to Partners Against Piracy (PAP), there is verifiable data available indicating that Kenya is among the top 5 countries in Africa contributing to millions of illegal online streams. The others are Nigeria, South Africa, Tanzania & Ghana. In the period between June 2021 to August 2021 the top 10 streaming piracy websites globally received 17.4 million illegal streams from the 5 African counties. Kenya leads the pack with over 7 million illegal streams. Kenya has one of the largest internet users in Africa.

The Mobile phone revolution accelerated by the availability of affordable smartphones has seen a drastic increase in the number of internet users. Companies like Safaricom and other internet service provides are reaping billions. According to a press statement dated 9th November 2021 and signed by Safaricom Board Chairman Micheal Joseph, Safaricom group continues to be a major contributor to the revenues of the Government of Kenya. Safaricom remitted 62.8 billion Kenya shillings in duties, taxes, and license fees for the six months to 30th September 2021. Imagine, for the financial year, 2022/2023 parliament allocated the Kenya judiciary approximately 18.2 billion Kenya Shillings. Safaricom taxes in 6 months can finance the entire judiciary budget for three and a half years. A company capable of raising enough taxes in 6 months to finance an entire branch of government for approximately three years if the 2022/2023 remain constant over a 3-year period.  This is how profitable the ICT sector in Kenya is. By 2050 Africa is expected to have a population in excess of 2.5 billion people.

Imagine, for the financial year, 2022/2023 parliament allocated the Kenya judiciary approximately 18.2 billion Kenya Shillings. Safaricom taxes in 6 months can finance the entire judiciary budget for three and a half years. A company capable of raising enough taxes in 6 months to finance an entire branch of government for approximately three years if the 2022/2023 budgetary allocations remain constant over a 3-year period.

During the 2022 World Intellectual Property Day celebrations held at Multichoice studio offices in Nairobi on 26th April 2022, Multichoice Kenya which is a founding member of the Partners Against Piracy Association hosted the launch of the PAP logo and mission statement. According to Multichoice Kenya CEO Nancy Matimu Multichoice is an aggregator of world-class leading entertainment. From all the top sporting events to music, to film and tv, Multichoice subscribers get aggregated world-class entertainment from all corners of the world. Unfortunately for Multichoice, it is suffering the negative effects of piracy. Pirates operating in the Multichoice market are illegally tapping Multichoice tv content resulting in billions of shillings in lost revenue. Multichoice operates in several countries in Africa. Multichoice believes the way to end piracy is through strategic collaboration with private sector & key government departments like Kenya Copyright Board which has copyright inspectors with police powers to arrest those tapping signals without Multichoice licenses. Multichoice is determined to play a critical role in anti-piracy efforts in Kenya. Multichoice is a force to reckon with. It has invested heavily in the media-entertainment sector in Kenya.  It has set up billions worth of heavy film development infrastructure. They are involved in the development of tv shows, films and sports entertainment.

Did you know that Millie Odhiambo is an accomplished creative?

Hon. Millie Odhiambo Mabona (L) & Nairobi Women Rep Hon. Esther Passaris Copyright property of Millie Odhiambo Facebook page.

Did you know that Millie Odhiambo is an accomplished creative? She enjoys reading. We eagerly await to review two books she is writing based on her experience in politics, law, and art. The release dates are not yet officially out. Millie attended St Francis Girls Secondary School and graduated with an O Level Certificate in 1984. She thereafter attended Limuru Girls High School and obtained an A-Level Certificate in 1986. Between 1986 and 1990, She was a student at Nairobi University where she successfully pursued a Bachelor of Laws (LLB) degree. In 1997 Millie Odhiambo attended Les Aspin Center Washington DC & Marquette University Wisconsin, in the USA where she pursued a course in Democracy and Governance. Between 1997 and 1998 she attended Raoul Wallenberg Institute in Sweden where she acquired a Post Graduate Diploma in Advances International Course on Human Rights & Humanitarian Law. According to her parliamentary profile page, in 1998 she attended IDLI, Rome, Italy pursuing training in Legal Prevention & Judicial Control of Corruption. In 2000 she joined New York University, USA where she graduated with a Master of Laws (LL.M) in Public Service Law in 2001. She is an accomplished legal practitioner & avid legislator. She believes that there is a greater need for the creative sector to come together in order for parliament to critically address creative sector challenges such as piracy. Speaking at the PAP event she narrated how together with her colleagues in parliament like John Kiarie, she mobilized her colleagues to defeat the Wanga Amendments.

Hon. Alice Wanga Member of Parliament Homabay Copyright Alice Wanga Twitter page

PAP set up an interesting panel. The first panel comprised both public sector and private sector creative industry stakeholders. The Public sector was represented by the Executive Director of the Kenya Copyright Board Edward Sigei. He was paired with the Kenya Film Commission CEO. Edward Sigei has been leading the amendments of the Copyright Act in recent times. He has drawn sharp criticism by some copyright industry stakeholders who don’t understand his strategy of dealing with CMOs. Once upon a time, Edward was a copyright prosecutor in the organization he currently heads. He rose from being a litigating lawyer for KECOBO to its top manager. I think this is why he doesn’t fear taking on industry stakeholders in court whenever his decisions are challenged in court.  When it became clear that Alice Wanga was proceeding to amend section 35, he alerted the country of the dangerous precedent the amendment would create. He managed to gain support from Kenya Film Commission (KFC) which was equally irked by the proposed amendment.

Kenya Copyright Board Executive Director Edward Sigei (L) speaking during the 2022 PAP World IP day celebrations at Multichoice Studios in Nairobi. Copyright property of Kenya Copyright Board twitter page.

According to KFC CEO Timothy Omase, KFC joined the fight against the amendment. He believes that KFC just like many other creative industry stakeholders should be collectively involved in the fight against piracy in Kenya. The Kenya Film Commission is a government department tasked with promoting films in Kenya. In recent times they have been involved in giving film grants and archiving films.

Kenya Film Commission CEO second right speaking during the plenary session. Roy Gitahi Founder & CEO Art Works Limited far right. Copyright property of KFC Twitter page.

The Creative Industry Private sector panel was represented by Roy Gitahi of Art Works Limited. Art works limited is involved in an ambitious project concerning financing art. Several years after Kenya enacted the Moveable Securities Rights Act,  most Kenyan creative economy stakeholders like artists, song creators & copyright owners are still not able to use their IP to secure credit facilities from banks. He believes in the near future artists will be able to secure funding from banks using their IP in music, books, film, etc. to secure capital. According to Roy piracy must be fought because banks will not lend to the sector if there are no strict controls to prevent loss of revenue to piracy. In order for artists to secure funding from banks, they will need to show the value of their IP. We support the quest to promote the development of a financial system for the creative sector.

The Music Advocate Africa Founder & CEO George Robert Asewe left & Njugush Creatives founder & CEO Blessed Njugush. Copyright property of Kenya Copyright Board Twitter page.

The Music Advocate Africa believes that Kenya needs a national conversation around the whole question of how we will fund and finance cultural industries like music, film, visual arts, live performance, technology, and fashion.  It’s not a problem for the national government only. County governments must also step up their efforts in funding the cultural sector. They have a constitutional duty to protect and promote Kenyan culture. There are many opportunities for investment in the arts. In America and Europe, the Major Labels (The Majors) like Universal group, Sony & Warner are publicly listed companies that raise capital from the American, Asian and European stock markets. They invest the capital they raise in copyright deals including buying music & acquiring film rights. They provide label and publishing services for the world’s top artists such as Rihanna, Jay Z, Beyonce, Drake, Cardi B, Adele, Bruna Boy, Sauti Sol, David. They own close to 80 percent of the music catalog in Europe and America. Raising capital from the Kenya stock market presents both a challenging and interesting proposition for the country.

Each of these creative professionals had something interesting to share about their career paths and progress. It was interesting to get their thoughts on piracy and their experience with the vice. First, to kick off the Creative Artists Panel was Kaka also known as Kennedy Ombima. Kaka has over the years proved to critics that he is a force to reckon with. Kaka is the sort of music mogul that walks around with a team of about 6-7 guys comprising his media and label teams. Kaka empire has over the years signed major artists in Africa. Femi One is one of their biggest success stories. Kaka narrated his journey to fame including his ups and downs in the industry. Kaka is an accountant by profession. Once upon a time, he taught a Zetech university. He has been able to secure endorsement deals with various corporate organizations including Safaricom and the famous KCB lion’s den. At some point in his development journey, he sold denim jeans to earn income. This was right about the time he was building his name as MC, hip hop artist and rap guru. He encountered several instances of his music being pirated and sold in the streets. Once, a pirate agent sold him his album without recognizing that he was selling to the King himself. Kaka attributes his success to resilience and developing business structures around him and his label.

King Kaka of Kaka empire (L) & Zahara Hassan (R). Copyright property of The Music Advocate Africa.

Did you know that Sarah Hassan the multi-talented Kenyan actress is an actuarial scientist by profession? Sarah disclosed that she excelled in the math and sciences while she was still in school. She disclosed that she struck a deal with her parents. She was allowed to pursue her artistic acting career provided she maintained good grades in school. She is currently the Alfajiri Productions Creative Director. Sarah expressed her willingness to voice concerns about affecting the acting industry. She cited the week organization of artistic bodies & lobby groups that has resulted in a situation where critical events in the industry are not communicated in a timely fashion. She was adamant that there needs to be a revolution in the sector since critical institutions such as guilds and CMOS haven’t lived up to their advocacy and protection mandate. Sarah’s company has experienced the negative effects of piracy. She narrated how she discovered a pirate had uploaded their productions on YouTube without the consent of Alfajiri productions. Sarah studied acting in the USA and has professional qualifications which she says have propelled her to great heights in the entertainment industry.

The animation sector was represented by Ernest Livasia of Chomoka studios. Chomoka is an animation studio based in Nairobi. He comically narrated his journey from high school until landing his first animation job. He is one of the pioneers of Chomoka studios. He urged the public sector players to invest in collaborating with schools to impart IP knowledge to students in creative schools. He raised concerns about the ability of the industry players to build formal businesses that were tax compliant and using legitimate software. He disclosed that during the severe covid pandemic their business survived on work they got from foreign organizations like NGOs who vetted them and found them as reliable service providers.

Njugush (L), Kui of Koincidence (Center), Ernest Livasia of Chomoka studios (R)

The fashion sector was represented by Kui Sun of Koincidence fashion house. The bubbly fashion entrepreneur passionately talked about the difficulties African fashion brands suffer including IP challenges related to piracy of fashion designs and the costly venture of protecting designs.

Comedy guru Njugush also gave a sneak peek at his rise to fame in the world of comedy. Njugush launched his solo career after some of his TV gigs were canceled. He passionately talked about how his wife pushed him to launch his solo career. He has also encountered piracy which harmed his business. Right about the time covid struck he had invested heavily in organizing a stand-up show. Unknown to him, there were some people in the audience who were illegally recording his performance. Even before he could exclusively release the production on his social media channels, his content was already being pirated on various YouTube platforms. One had even gained 35 thousand views. Njugush was adamant that he will be instrumental in advocacy over piracy issues.

Njugush with Dj Probert The Music Advocate Founder & CEO

The two panels were moderated by media presenters Ramah Nyang and IP lawyer and Capital FM presenter June Gachui. The panels elicited serious discussions about the role of ISPs and IP owners in the fight against piracy. The moderators kept the debate lively. The only option we have is to combat piracy and invest in the creative sector. CMOs as custodians of music repertoires have a greater role in protecting artists and their IP.

The Music Advocate Founder & CEO DJ Probert with IP Lawyer and Capital FM Radio presenter June Gachui during the Partners Against Piracy event at Multichoice Nairobi. 
Business Journalist Ramah Nyang. Copyright Property of Ramah Nyang twitter page.

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