GOVERNANCE

Particular issues concerning general Meetings & Conflict of Interest

GENERAL MEETING

Explanation

As with other companies and/or associations, the general meeting of a CMO should be held regularly and should be properly regulated. Most of the recommendations included in this section are standard clauses found in laws regulating the governance of companies or civil associations in Kenya and around the world. The rules on the operation and running of the general meeting should be clearly mentioned in a CMO’s Statute, and naturally follow the applicable laws of Kenya.

PROVISIONS OF THE BILL IN REGARD TO GOVERNANCE OF CMOs.

1.    A CMO should convene a General Meeting of its Members or of their elected representatives at least once a year.

2.    The General Meeting should approve any amendments to the Statute and to the membership terms.

3.    The General Meeting:

a.    approves the general policies on the Distribution of collected monies; deductions for social, cultural, or educational purposes; and the use of non-distributable monies and investments.

b.   approves the Annual Report and is to be presented with an auditors’ report that comes with that Annual Report.

c.    appoints and dismisses members of the board, and approves their remuneration and other benefits, pension awards, severance packages and other awards;

d.   decides on its general investment policies. The information about the type of investment, the investment policy, and the policy’s results should be included in the Annual Report;

e.    appoints one or two independent external auditors;.

f.     approves clear and objective rules governing the functioning and proceedings of General Meetings; and

g.   approves the suspension of membership of Members, when appropriate.

4.    The Statute of a CMO may delegate some of the above- mentioned powers of the General Meeting to the board, in compliance with applicable rules in national legislation, if any. The delegation process must be in consultation with rightsholders.

INTERNAL SUPERVISION

Explanation

Proper internal supervision of the CMO management and operations by an independent supervisory body is an essential element of effective and transparent collective rights management. Members of the supervisory body are appointed by the CMO in the general meeting and normally represent the Rightsholders whose rights are being managed. It may, however, sometimes be advisable, insofar as it serves the interests of the Rightsholders better, to appoint as members of the CMO’s decision-making and/or advisory bodies individuals that do not directly represent Rightsholders, but have commercial or legal experience that is valuable for the proper functioning of such body, so long as representatives of Rightsholders make up more than a simple majority of decision-making bodies, unless subject to specific applicable rules or government regulations.

PROVISIONS OF THE BILL

A CMO’s Statute should ensure a fair and balanced representation of its different categories of members on the board.
The requirements, established in the Statute, to apply to become a member of the Board, shall be clear, objective and not arbitrary.
The General Meeting may elect board members for their commercial, legal and other relevant experience, subject to any limitations provided by law.

AVOIDANCE OF CONFLICTS OF INTEREST

EXPLANATION

A well-functioning CMO should take steps to avoid conflicts of interest and ensure the integrity of the board and the management of the CMO. These measures and procedures should preferably be included in internal rules, which should be reviewed regularly. Whether public or private CMOs are more appropriate for the collective management of copyright and related rights depends on the political, economic, and legal conditions and traditions of the countries concerned. Historically, and due to the raison d’être of collective management, CMOs are generally private organizations, controlled by Rightsholders.

PROVISIONS IN THE BILL

1.    A CMO should have in place internal rules to avoid conflict of interest and, when such conflicts cannot be avoided, to identify, manage and monitor conflicts of interest which might prevent board members from discharging their responsibilities.

2.    These rules should include at least an annual individual statement of actual or potential conflicts of interest by each person managing the CMO, by each member of the board or by the respective proxies they might appoint.

3.    A CMO should be governed independently and transparently, based on an appropriate legal structure, focusing on Licensees and intermediaries on behalf of the Rightsholders it represents, and distributing remuneration to them.

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