Mutuma Mathiu Nation Media Group Editorial Director’s Thoughts on Kenya’s Copyright Scene article published on Friday, May 13, 2022, vindicates our petition calling for major copyright reforms in the Kenya Music Industry.

By George Robert Asewe DJ Probert
Founder & CEO
The Music Advocate Africa

The Music Advocate Africa believes that Kenyans should be kind, for everyone you meet is fighting a hard battle. We believe courage is knowing what not to fear. We don’t fear speaking the truth about Kenyan music. We love music. Music is our business. This article is inspired by Greek Philosopher Plato who famously stated that one of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. The article is also inspired by an opinion article by Nation Media Editorial Director.

According to Mutuma Mathiu, the Editorial Director of Nation Media Group

“The management of copyright in Kenya requires a lot of work and investment. The average Kenyan musician is poor and cannot live off his talent.”

Mutuma begins his piece by disclosing that on his birthday he completed his first term as chairman of the Kenya Copyright Board, an occasion from which he drew pride, satisfaction, and gratitude.

Who is The Kenya Copyright Board?

The Kenya Copyright Board (KECOBO) is a state corporation established under section 3 of the Kenya Copyright Act No. 12 of 2001. Its mandate is the overall administration and enforcement of copyright and related rights. The Board carries out public awareness, enforcement, registration of copyright, licensing of collective management organization, and education on matters of copyright and related rights. It coordinates the activities of the copyright industries. Rightsholders and users are expected to work with the Board to ensure proper administration and enforcement of copyright as well as create an enabling environment for the growth of the copyright industries in Kenya.

Mutuma eloquently argues the need for reforming the Kenyan music business. He is spot on. It is actually for this reason that in February 2022, The Music Advocate Africa formally launched a petition seeking to radically change the business of collective management organizations. We have drawn a draft bill to fix CMOs, Music Data & Digital Music. The bill is published on our website for purposes of public participation.  It is our position that Kenya is in urgent need of a digital CMO framework.

When our proposal for a digital CMO materializes, existing CMOs like KAMP, PRISK, & MCSK should not worry about their mandate. The Digital CMO will only administer a blanket mechanical license to eligible digital services to be identified in the law. It will not get involved in any other type of licenses or royalties including public performance licenses or royalties, synchronization licenses, or record royalties.

Background of Kenyan CMOS

According to the Kenya Copyright Board website, The Music Copyright Society of Kenya (MCSK) is a Collective Management Organization that represents the rights of authors, composers, and publishers. It collects and distributes royalties for public performance and broadcasting of its member’s rights. It also administers the mechanical and synchronization rights although the latter is voluntary as members may administer these rights individually. The mechanical rights also cover the rights in ringtones and are entitled to collect the royalties from users. MCSK also administers the rights of proprietors of the works if they are the bonafide owners and have legitimately acquired the rights from the authors, composers, and publishers.

In regard to the producer’s organization Kenya Association of Music Producers (KAMP), represents the rights of the producers of sound recordings and is entitled to royalties accrued from the public performance and broadcasting in relation to the sound recordings. The royalties are collected from the same users as MCSK such as broadcasting stations, entertainment venues, malls, restaurants, and hotels. Although they collect from the same users, they collect for the sound recording and not the underlying musical work.

The Performers Rights Society of Kenya (PRISK) represents the performers such as musicians, thespians, actors and actresses, acrobats, and dancers among others. They collect royalties on behalf of members for the broadcasting and public performance of their fixed performances.

Mutuma Mathiu. Copyright property of Kenya Copyright Board website page.

Mutuma’s article lends credence to our push for a digital music revolution in Kenya. He acknowledges that the current system regulating collective management organizations has failed since the CMOs are unable to ensure that each of their members gets their rightful share.  According to Mutuma:

“Collection is, in some instances, very close to the merry Stone Age process of a fist and knobbed stick shakedown, and distribution sometimes boils down to getting a sum and dividing it by the number of members and giving everyone an equal share, irrespective of whether your work has been consumed or not. It comes down to a figure like Sh2,000 per artist. This process is, of course, woefully inefficient, and wasteful.”

On April 1st, 2022, when we released our first policy paper “Why Kenya’s Creative Economy Needs a New Collective Management Organisation Law” our position was and still is that 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. It is currently being taught to Kenyan school children under the CBC system introduced by President Uhuru Kenyatta’s government. However, the Kenya Music Industry is in problems due to the failure of CMO systems & leadership.

This failure is a result of an incompetent legal framework riddled by conflicts of interest and uncoordinated legal amendments that have created an environment that violates creator interests. Kenyan creators are undergoing depression because of the predatory practices that seem to have brought the industry to its knees. Kenyan artists are going through mental health issues that arise from the failed copyright systems that don’t pay artists their return on investment. In 2021 CMOs consumed over 65 % of their collections on administrative expenses including rent, salaries, legal and other expenses they are unable to explain. A window washer working for MCSK earns more money that P Unit, Wangechi & Nikita combined.

“music is an extreme sport”

Wangechi. Copyright property of Wangechi Twitter page.

Nikita Chepchumba Kering, who just walked away with the coveted ‘Female Video of the Year’ (for Ex) award at the 2022 Pulse Music Video Awards also commented.

Screenshot image of posted by Nikita on twitter while responding to Wangechi.
Copyright property of Nikita Twitter page profile picture

We believe that the system of Intellectual Property Rights in the Creative Economy is an important factor that determines the success of Kenya’s creative future. In our view, 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 amendments have a history of enactment after litigation challenging various acts of the copyright regulator over the last decade. The framework wasn’t afforded sufficient public education & participation. For example, the CMO regulations enacted by KECOBO in 2019 were the product of a directive by the High Court in a judgment where the regulator was a party. The first-time public participation was conducted before licensing CMOs was towards the end of the year 2018. Again, this was after directives issued by the High Court. I guess this is why Mutuma feels that the Courts are always on the side of CMOs. I don’t think the courts can fix the music crisis. We have been in court since 2014 and the sector continues to deteriorate.  The role of the court is to resolve disputes through the interpretation of the law. It doesn’t have the capacity to run the industry through judgments. We are in a position where the law is inadequate and therefore the country will continue to experience inadequate results.

Did you know that the definitions part of the Kenya Copyright Act doesn’t define what a CMO is. It defines what KECOBO is. It defines terms such as who are authors, publishers, etc. There is an attempt at the definition in section 47 (8). The Act fails terribly to properly define the roles and functions of CMOs and how to promote member interests. These are left to the regulator. This is not the best approach. The regulator exists to implement the copyright law. Not to write copyright law. This is the role of parliament. The Act acknowledges the importance of CMOs and mandates the state to license qualified organizations. Unfortunately, key terms, concepts, and principles that should ordinarily be codified in the substantive text of the law are absent. Key provisions of law cannot be left to subsidiary legislation developed by KECOBO. It is extremely dangerous to place substantive provisions of a law on the secondary schedules of the Act since parliaments’ attention on key issues may be missed resulting in inadequate & inefficient application of the law. This is the case in Kenyan music. Everyone in the music supply chain is making money except for the artists and rights holders like publishers’ songwriters, lyricists, and composers.

Chief Justice Martha Koome. Copyright property of judiciary website page.

In response to Mutuma’s assertion that the courts are largely on the side of CMOs and never waste a chance to kick the regulator in the stomach and that the CMOs have a lot more money while the regulator is cash-strapped and that CMOs are better politicians and propagandists than the technocrats trying to run the sector, we hold a slightly different view. Granted, CMOs are political institutions. They are founded on the principles of voluntary membership and democratic processes in relation to the appointment of their boards of directors. It’s therefore true that CMO leadership has over the years engaged in propagandist leadership to the point that their members are constantly in the dark about the management of their affairs. This still baffles us. For example, a common lie within the music sector perpetuated mostly by CMO leadership is that copyright management is a private affair, and the government should have no role in regulation. Certain quarters believe this absurd lie. No country in the world has such a system.

However, we also believe that the CMO Regulations give the regulator a lot of police powers over CMOs compared to Music Users like broadcasters. The regulator can deregister a CMO that fails to comply with its regulatory directives. 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, media, public spaces & matatus that fail to pay for music licenses every year. The structure of the regulator needs revision in our view. The regulator should play a more faciliatory role in creating the business environment necessary for CMOs to protect their member’s royalty. We believe that a formula for funding KECOBO must be found in law since they play a critical role in the economy. The biggest companies in the world like Microsoft, Apple, and Spotify wouldn’t exist if it were not for copyright safeguards and systems promoting innovation. It is a big shame for Kenya to allow a system where Kenyan artists get regular statements about their music from foreign companies they are affiliated with in Europe and America. Their local equivalents in the music industry lack transparency in data and royalty management. We need a music data policy for the digital age. Not the Stone Age.

Despite the prime importance of data management in music, the current legal framework is silent on very many music data issues necessary for an efficient royalty collection and distribution system. We, therefore, believe that a new legal framework enacted after public participation is necessary.

In regard to Mutuma’s assertion that his ideal structure is one that offers the individual artist education about his stake and interests in the industry as well as choice and opt-ins in the management of his royalties by these organizations, it is our view that this should only apply to our proposal to set up a digital CMO. Mutuma refers to it’ as “Digital Wallets”. This is because the digital CMO cannot replace the work currently being done by the Music Copyright Society of Kenya, Kenya Association of Music Producers, and Performance Rights Society of Kenya. Just because MCSK, KAMP & PRISK have failed and lost credibility in the eyes of their members isn’t sufficient reason to eliminate them. Instead, we need a more stringent legal order that will tame their conduct so that they deliver.

Litigation and courts cannot fix the problems in the sector. We have practical experience setting up a CMO for Authors, Publishers & Song Writers. It is the most difficult task when you don’t have the finances to set up the CMO. The term of the copyright license is so short that by the time you put in place structures the term of the license has expired. KECOBO is cash strapped. It wasn’t even in a position to offer a bailout to MPAKE when it was registered between 2017 & 2018. Those who invested their time and money to set up MPAKE after MCSK refused to play by the rules lost millions of shillings when KECOBO opted without sufficient cause to license MCSK in 2019. It is very expensive to set up a new CMO. That’s why we have to reform the devils we know rather than replace them with angels we don’t know. It’s a less complicated process that is viable. That’s what we a proposing.

We envisage that the digital CMO will be a nonprofit organization just like MCSK, KAMP & PRISK licensed & regulated by the Kenya Copyright Board. The role of the digital CMO will be to issue blanket mechanical licenses to eligible streaming services including those that allow permanent downloads. This means that some digital services like music services from telecommunication companies like Safaricom, Airtel, & Telecom would require a blanket license. Telecommunication companies are currently offering digital music services without a blanket license. This is unfortunate since none of the 3 existing CMOs collects royalties due under those services. Songwriters, composers, and various other rights holders entitled to digital mechanical rights royalties are not being paid despite the use of their rights. This is not the position in Europe, America, Japan, Korea, or China. We need to urgently reform digital music.  KECOBO should also stick to the registration of copyright & regulation. Any roles in regard to running industry matters should be well codified in law. KECOBO should only monitor compliance and hand reasonable sanctions where necessary.

In the United States, The Mechanical Licensing Collective (The MLC) which is a CMO established by the 2018 American Music Modernization Act in January 2021 began administering blanket mechanical licenses to eligible streaming services like Spotify. It took almost 3 years to set up the operations of the MLC from scratch. We envisage that Kenya will need some time to lay down the necessary infrastructure before the digital CMO can roll out operations. 

Copyright property of The Mechanical Licensing Collective (MLC).

It’s however refreshing to see that there are stakeholders within and without KECOBO who believe our rally call for reforms is valid. This is reassuring because we need the media to highlight the plight of Kenyan music. We salute Mutuma for his bold declaration. This should show the country that indeed our petition warrants national recognition & debate. Leading media houses must join the conversation because they are not responsible for the failure to enact legal safeguards for the music industry.

Finally, in regard to Mutumas’ declaration that one of his biggest regrets is that he ran out of clock before he could get justice in the disappearance of hundreds of millions of shillings belonging to artists discovered in an audit by KECOBO and that the money should be recovered – at any cost – and restored to musicians to whom it rightfully belongs we salute and agree. He is of the opinion that it will take a lot more power than the regulator has to ensure this outcome. Our response is that the regulator hasn’t fully exercised their options. We exist in a country where the law allows anybody to initiate private prosecutions if the DPP fails to act. This was the case even before the 2010 Constitution. We believe KECOBO has the mandate and powers necessary to prosecute crimes related to the violation of copyright and creator interests. KECOBO should draw inspiration from the constitution of Kenya which demands that the state protect and promote the intellectual property of the people of Kenya. Why haven’t they initiated prosecution processes to deal with the suspects behind the misuse of royalty? Don’t we have an asset recovery authority that can guide recoveries? The CMO license is a public asset granted by the state to the private sector and if misused by CMO leadership, it should attract the wrath of public authorities including the Directorate of Public Prosecutions.

We wish Mutuma well in his endeavors within media. Our push for reforms cannot succeed without the media. They are a critical stakeholder in the process. It’s not his fault CMOs have failed during his helm at the regulator. The failure of our CMOs is a legal & structural issue. Even though we believe CMO leadership should be held to account, their incompetence and misbehavior are aided by loopholes in the copyright legal framework. We need a pure new legal framework for CMOs, Music Data & Digital Music.

At the end of the financial year 2016, the leadership of the Music Copyright Society of Kenya shocked the country when it declared that it would not make royalty payments to its members on account of alleged financial difficulties. Some of their members were notified via text. Most heard about it from the grapevine. This was despite the existence of evidence showing they had collected hundreds of millions in royalty. The Music Advocate on behalf of CMO members like Dan Aceda sought an explanation from KECOBO on the issue. When it became obvious that KECOBO was set to renew the MCSK license on a provisional basis without justification we filed a suit against KECOBO at the High Court seeking to compel KECOBO to undertake a financial and statutory compliance audit of MCSK because the numbers were not adding up. Despite KECOBO, alleging that they didn’t have the power to do the audit, the high court granted us an injunction. According to the documents filed in court by KECOBO, KECOBO alleged that MCSK had refused to submit its audited financial statements. A litany of lawsuits ensued.

Send enquiries to Robert@TheMusicAdvocate.Africa

We petitioned former Chief Justice Maraga to set up a 3-judge bench to consolidate and hear the various lawsuits that had been filed against different stakeholders including KECOBO, MPAKE, MCSK & the Attorney General. The suits had been filed by both Music Users like Kisumu Pubs & Restaurants Association and music authors & performers like Laban Juma Toto & David Amunga. KECOBO was party to the decision of justices David Majanja, Justice Cherere & Justice Ruth Sitati which validly held that MCSK had collected millions of shillings as royalty including during the time, they didn’t have a license between 2017 & 2018. The Court ordered MCSK to account to KECOBO and that the monies be paid to artists. This was in mid-2018. To date, Kenyan artists have never been paid by MCSK which is in flagrant violation of the court orders. MCSK is however back to the same courts it has been defying. It is seeking the court’s mercy against the decision to deregister it in 2021. We eagerly await the outcomes of their lawsuits against the government. Whether MCSK accounted to KECOBO as directed by the High Court in 2018 is also unknown to many stakeholders in the music industry including MCSK members. We believe this was the genesis of the audit that revealed shocking scandals about how CMO leadership has violated the rights of Kenyan creators.

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors.

CMOs that should have been in the driving seat pushing music reform have been compromised as a result of their disastrous performance. The leadership has lost the credibility and trust of its members. They are unable to lead private sector music talks. This informs our action to step up and act.

Do you remember the Zondeka song and what Khaligraph Jones said about MCSK music royalty collections ?

The CMO leadership is out of touch with their members’ demand for financial accountability and transparency. For example, former Kenya Film Classification Board (KFCB) boss Ezekiel Mutua has been appointed as the Chief Executive Officer of the Music Copyright Society of Kenya (MCSK). According to a statement shared by the Society to newsrooms, Dr. Mutua’s appointment took effect on March 25, 2022. Dr. Mutua was asked to go on compulsory leave by KFCB in 2021 pending investigations by the Ethics and Anti-Corruption Commission (EACC). He was being investigated over allegations of receiving irregular payments and allowances. During his helm at KFCB, he demonstrated zero zeal for Kenyan music constantly engaging in bitter exchanges with various creative industry professionals like Eric Omondi. A vast majority of citizens expressed their preference for mentorship as opposed to censorship every time he ranted about Kenyan music artists. We don’t know what kind of political statement the MCSK board was sending the country in regard to this appointment. It appears the system has been structured in such a way that it allows leadership that doesn’t inspire growth and confidence. What is clear to us is that there is a need for a law regulating the leadership of CMOs.

Ezekiel Mutua in dark cap dancing. Copyright property of MCSK website page

CMO leadership continues to perpetuate a culture of impunity where the rights of the artist are violated without due care. Imagine, despite KECOBO demanding that CMO expenses should not exceed 30% of total royalty collected in August 2021 KECOBO deregistered KAMP, PRISK & MCSK because their expenses violated the rates set by the regulator. According to a public notice issued by Edward Sigei Executive Director of KECOBO on August 24, 2021, Edward notified the country that the Board of Directors of the Kenya Copyright Board had taken a decision to deregister three Collective Management Organisations (CMOs) namely, Kenya Association of Music Producers (KAMP), Performers Rights Society of Kenya (PRISK) and the Music Copyright Society of Kenya (MCSK). This decision was arrived at after the three CMOs failed to meet the stringent conditions stipulated in the provisional licenses set out by KECOBO Directors in April 2021. According to Sigei’s notice, “The main issues flagged by the Board of Directors include the opening of a different account other than the KPM account authorized by KECOBO, having spent more than 65 percent of the finances on administration cost contrary to directives and not undertaking their role of engaging the public and raising awareness about the KPM system,” noted KECOBO Board Chair Mr. Mutuma Mathiu. In the circumstances, the Board did not have any option other than to take the painful decisive action as provided by the Copyright Act.

History of CMO struggle from our media archives

NATION TV ON MCSK LOSING LICENCE TO MPAKE

Copyright Property of Nation Media TV YouTube page.

CITIZEN TV ON ARTISTS PROTESTING ROYALTY PAYMENTS

Copyright property of Citizen TV YouTube Page.

WHEN WE FOUGHT FOR DIGITAL MUSIC RIGHTS IN COURT ON BEHALF OF MUSICIANS

Copyright property of Nation Media Group TV YouTube Page

star news on mcsk ksh 2500 payment in 2019

Copyright property of Star News website page.

CAPITAL FM ON ARTISTS PROTESTING PEANUT PAYMENTS BY MCSK

Copyright property of Capital FM media group website.

Mutuma, we wish you well and welcome your support for reforms in the industry. We believe in a united movement seeking change and reforms. We must end the blame game and fix the real issues affecting music.  KECOBO cannot do it alone. It needs all stakeholders on board including the media. Join our initiative and help us unleash to the creator economy billions of shillings in lost royalty. It’s time to end conflict and build profitable relationships for the creative economy in Kenya. We must all work together to end the blame game going on in the creative sector.

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