Why Kenyan Music Creators Need a New CMO Law

The Constitution of Kenya places an obligation on the state and every citizen to promote and protect Kenyan culture & intellectual property. Music unites Kenyans and celebrates our common identity and diversity. Music rights holders such as musicians, song writers, publishers, producers, record labels, lyricists, composers, and performers rely on collective management to earn income whenever their music is performed in public. In Kenya this system has persistently failed resulting in a continuous blame game approach between music owners, users & the copyright regulator Kenya Copyright Board. In August 2021 KeCoBo deregistered MCSK, KAMP & PRISK. This is not the first time. It has become the norm every year.

call for action

The system of Intellectual Property rights in the creative economy is an important factor that determines the success of Kenya’s creative economy. The current Collective Management Organisations Regulations consist of a parchment of hurriedly carried out regulations not supported by the text and fiber of the Kenya Copyright Act. The framework wasn’t afforded sufficient public education & participation. Did you know that the definitions part of the Kenya Copyright Act doesn’t define what a CMO is. In fact, a CMO is defined by the inadequate 2020 Regulations. How can an important component such as this be missing. The Act miraculously provides for the registration of CMOs but reluctantly refuses to define roles and obligations in the substantive text. The Regulations give the regulator a lot of police powers over CMOs. It however has spectacularly failed to empower the regulator to build & promote CMOs in the interest of the nation’s creators and music users. The regulator can punish CMOs that don’t comply with regulations but is completely toothless when it comes to Music Users such as broadcasters, public spaces that fail to pay for music licences. The structure of the regulator needs revision. The regulator should play a more facilitator role for creating the business environment. Despite the prime importance of data management in music, the current legal framework is silent on music data. We therefore believe that a new legal framework enacted after public participation is necessary. Join our initiative and help us unleash to the creator economy billions of shillings in lost royalty. Its time to end conflict and build profitable relationships for the creative economy in Kenya.

MUSIC DATA

However, the advent of streaming and online distribution has posed a significant challenge for the management of repertoire and content attribution. This is due to unprecedented volumes of data being generated, divergent velocities across the data flow, exponential increases in the variety of data sources, a lack of confidence in the veracity of the information and difficulties with access. Additionally, inherited frameworks, which remain the backbone of the system, and which evolved to ensure that rights holders are effectively, efficiently, and transparently remunerated, have increasingly been threatened by a range of competing, proprietary data protocols, introduced through disruptive innovation. Across the ecosystem as a whole, a divergence of standards has compounded problems. This multi-layered fragmentation of metadata and a preference for proprietary walled data silos, have inevitably undermined cross-system interoperability

There has never been so much choice at all levels of the value chain, the growth in new streaming services and platforms, each with their own methods of managing data, means that there is a potential for error and conflict and a growing threat to an artist’s ability to gain attribution and remuneration for their works. In order to develop the right environment for the market to create new and sustainable business models, we need data to be robust, reliable, transparent, and accessible. In many parts of the Creative Industries, in particular the Music industry, this is not currently the case.

DEFINITION OF MUSIC DATA

Data can be defined as a collection of facts such as numbers, words, measurements, observations that has been translated into a form that computers can process. It can also simply be information. In the music industry, this data, specifically clean data, is central to the function of any remuneration/reward system that is built upon content attribution.

The application of computers to solving complex business problems is well established however there is a move towards using mainstream artificial intelligence (AI)/machine learning (ML) techniques which is a big departure from previous practice as most business problems were solved by processing data with logic, not learning from the data itself via algorithms. Netflix recommendations are built on data, LinkedIn has 300 billion events in which data is used every 24 hours, Uber tracks data from rides and drivers to match them up and select the best journey. Machine Learning is the process of building a scientific model after discovering knowledge from a data set. It is the complex computation process of automatic pattern recognition and intelligent decision making based on training sample data. Machine learning can therefore make use cases like this possible as it can make predictions based on patterns and the other factors it has been trained with, which can prove significant in the music industry for solving gaps in data when amalgamating various repositories of music data.

CONFLICTS OF INTEREST

Whereas the Copyright Act places an obligation on CMOs to develop rules to govern conflict of interest, a greater conflict of interest is created by the structure of the regulator vis a vis roles of stakeholders in the music industry.

The Act gives the regulator supervisory powers over the CMOs including power to deregister the CMOs. However, it is silent on music users violating the collecting system framework. For several years the regulator has been unable to enforce collections by defaulting users of music.

Equally, some CMOs have engaged in business riddled with conflicts of interests. These arrangement put in danger the rights of creators since there is no oversight law guarding such arrangements.

FINANCIAL MISMANAGEMENT IN CMOs

To understand how unjust the situation is for music artists in Kenya, we want to give you an analogy of an agent to help you empathize. Simply put, the work of an agent is to act on behalf of a principal. The agent never acquires ownership of the principal’s interest. They are just entitled to their agency fees which should be less than 20 % and no more than 30%.

Imagine you hire an agent to collect debt on your behalf. The agent manages to collect 100 percent of your debt. The agent then pays you 20 percent of what they collected. The agent retains 80 percent of the collections. When you seek justification of why the agent is acting unfairly and unprofessionally, the agent tells you that their business model is structured in a way whereby they use 80% of what they collect for you as their costs.  This is how MCSK, KAMP & PRISK operate.