Nonini, Music Copyright Society of Kenya (MCSK) , The American Society of Composers, Authors, and Publishers (ASCAP) and the Struggle to Reform Kenyan CMOs.

I have known Hubert Nakitare also known as Nonini for many years. He has been and continues to be a good friend. Even before his move from Kenya to America, he was a fellow comrade committed to CMO reforms in Kenya. He has stood the test of time as a creative who is not shy to expose the rot in the Kenya music industry. My friendship with Nonini blossomed when he was elected a director of the Performance Rights Society of Kenya and later its board chairman. On May 24th, 2022, Nonini through his social media handles posted a letter dated 24th May 2024 signed on behalf of the Music Copyright Society of Kenya by its CEO Ezekiel Mutua.

Before I disclose the reasons why I think Nonini resigned from MCSK it’s important to first disclose my working relationship with Nonini. It is not a secret that for many years the Music Copyright Society of Kenya has been at loggerheads with its members and external stakeholders like Kenya Copyright Board and various music users. At the height of the Kenyan CMO wars in 2017 & 2018 between the Kenya Copyright Board (KECOBO), Music Copyright Society of Kenya (MCSK), Music Publishers Association of Kenya (MPAKE), Kenya Association of Music Producers (KAMP), & Performance Rights Society of Kenya (PRISK) Nonini was both a director and later elected to be the board chair of PRISK.

When MCSK refused to submit its audited accounts to KECOBO at the end of the financial year 2016, I and Dan “Chizi ” Aceda moved to court in 2017 on behalf of over 15,000 members of MCSK to demand accountability from the government and an audit of the finances of the CMO. This is because long-standing members and pioneers of the society such as Nonini had not been paid their royalty for several years despite the fact that they were constantly releasing hits that were popular in the music market. We also had evidence showing MCSK had been collecting hundreds of millions of shillings without distributing it to the members. Because MCSK had refused to comply with the law, the government advertised and invited applications for the formation of a new CMO for authors and publishers to replace MCSK which was operating outside the Kenya Copyright framework.

According to court documents filed in court, the copyright regulator disclosed that MCSK had refused to comply with copyright regulations on the collection & distribution of music royalty. The regulator disclosed that MCSK had refused to submit its financial statements and it had no option but to license another CMO. Our actions with Dan Aceda have since been vindicated. A recent audit conducted by KECOBO has shown that indeed our call for an audit was warranted. The audit revealed that Managers and Directors of the CMO had embezzled hundreds of millions of shillings through mischievous schemes that the CMO is unable to account for. The fate of this audit still hangs in the balance.    

I was honored and privileged to be entrusted by MCSK members to provide legal and regulatory advice that resulted in the licensing of the MPAKE. Between 2016 and 2019, I steered the legal ship. Nonini supported the promise MPAKE was bringing to the market at the time. For the first time in the history of Kenya, we spearheaded joint collections of royalty. This had never been done before. In fact, for several years MCSK had frustrated efforts to merge operations with KAMP & PRISK. When we came into the CMO game, we found a disorganized and largely unprofitable method of collection and distribution of royalty. It was a manual system of collection that had been abused for several years because the system didn’t have sufficient checks and balances. For instance, we came across cases where music users had paid for music licenses and were issued receipts. However, the CMO accounts were not reflecting these kinds of collections.

MPAKE developed the first digital collection and distribution system. We lobbied KAMP & PRISK to adopt it since they didn’t have the capacity and money to develop a modern reliable system for digital collections and distribution. After our appointment as a CMO for Authors and Publishers, we entered into joint collection agreements with our then partners KAMP & PRISK. Nonini signed the agreement on behalf of PRISK as its chairman. MAPKE however did not have it easy. We were the subject of numerous lawsuits brought by MCSK and their stakeholders including music users like pubs & their members. This hampered & crippled our operations in 2017 & 2018. One of the outcomes of the 2017 cases was that KECOBO needed to undertake public participation before licensing CMOs since one of the issues raised in the suits was the issue of public participation as dictated by the constitution of Kenya which requires the government to engage the public before making public policy decisions that affect the public.

Armed with a license to operate in 2018, we were now geared towards building upon the reforms we initiated. At the time we were confident that our partners in KAMP & PRISK were eager to build transparent structures that would address the needs of the music market. For far too long, Kenyan creatives had been let down by their CMOs. The CMOs consumed most of their collections on suspicious administrative costs only distributing a paltry 10-15%. Instead of playing ball as directed by the government, the boards of KAMP & PRISK began engaging in conduct that frustrated our efforts to bring change. For example, whereas MPAKE had committed to distributing 70% of its collections KAMP & PRISK boards were very uncomfortable with this.

Whereas Nonini was at the forefront of demanding that 70% of collections of PRISK be distributed to members he found himself in hot soup. His fellow directors were not committed to the 70% distribution formula prompting Nonini to resign from the chairmanship of PRISK. Before resigning and out of the respect that he had for me due to our working relationship he confided in me his frustrations at the PRISK board, and he explained to me why he was taking the painful decision to resign. He did not want to be part of a system that was committed to going against the government regulations for CMOS. For example, despite KECOBO directing that CMOs jointly collect royalty, KAMP & PRISK directors excluding Nonini decided to collect royalty without the participation of MPAKE. This was a violation of the terms and conditions they had agreed to when they were licensed in 2018.

We at MPAKE were so frustrated. We were operating in a market where our CMO partners had resolved to cut us out of the joint collections. They frustrated the digital collection and distribution system that we had built for the market. They even cut us out of collections and began collecting without our participation. KECOBO mediated the dispute leaving many stakeholders in limbo. Critical stakeholders were left out causing many fallouts. Ultimately, we were frustrated with fighting many proxy wars by people who didn’t want to embrace transparency & integrity in collections and distribution. In 2019, KECOBO struck a deal with MCSK and the license was returned to them. They committed to complying and embracing transparent systems. Unfortunately, this was not to be. In August 2021, KECOBO deregistered MCSK together with our former partners KAMP & PRISK. According to KECOBO the 3 CMOS had failed and refused to honor the terms and conditions attached to the licenses that required them to digitize collections and distributions. They had also failed to implement the 70% distribution rule that we championed in 2017 & 2018.       

When Nonini posted on his Facebook page that “Insanity is doing the same thing over and over and expecting different results. Moving on to something that actually works” I instantly knew what he meant. He has been part of the struggle seeking to reform music institutions in Kenya. He is an artist with several musical hits. His tenure at MCSK never resulted in profitable royalties from his music. He has been frustrated several times to the point of resigning from MCSK. I think he left MCSK for The American Society of Composers, Authors, and Publishers (ASCAP) for the following reasons:

1. MCSK leadership doesn’t fully understand the Role of CMOs in the Kenya Music Industry

CMOs provide appropriate mechanisms for the exercise of copyright and related rights, in cases where the individual exercise by the Rightsholder would be impossible or impractical. Collective management is an important part of the functioning copyright and related rights system, complementing individual licensing of rights, resting on robust substantive rights, exceptions and limitations, and corresponding enforcement measures. In this vein, CMOs provide a bridge between Right holders and Users, facilitating both access to music and remuneration of music rights holders. Unfortunately, it appears senior management of MCSK doesn’t clearly understand their licensing roles. For example, in May 2022 barely a month after MCSK appointed a new CEO Ezekiel Mutua, the CEO was at loggerheads with Kenyan music group Sauti Sol over a music synchronization dispute. Whereas MCSK which was deregistered in 2021 and currently doesn’t have an operating license, MCSK has been collecting music license fees from unsuspecting members of the public including presidential campaigns. When a dispute erupted after Sauti Sol’s music was synchronized in a video belonging to a political movement known as Azimio la Umoja, the MCSK CEO was quick to shoot himself at the foot by alleging that they were the only entity capable of issuing sync licenses and not the artist. This statement was made in blatant disregard for the fact that Sauti Sol has never surrendered their sync rights to MCSK. This was also very absurd since the customary practice in Kenya is that artists administer their own sync rights unless they directly appoint the CMO as the administrator of their sync rights. MCSK CEO has since eaten humble pie and conceded that they don’t have ultimate authority on sync rights.

2. MCSK has a history of mismanaging the relationship between itself and its members

MCSK has a history of mismanaging the relationship between itself and its members: I have represented several artists against oppressive leadership that sought to expel MCSK members from their society since they were perceived to be truth activists seeking to uncover inefficiencies at the CMO.

3. MCSK has failed the governance test for CMOs.

MCSK has failed the governance test for CMOs. It has been deregistered close to 4 times in the last decade without any signs of things getting better. Despite evidence that MCSK is currently amending its constitution and governance policies, most members are in the dark about the proposals which are not even available on their website for members to download and read. I represent several top acts in Kenya. None of them is aware of these constitutional amendments and it looks like the matter will end up in court sooner or later.

4. MCSK has failed the CMO financial administration & Management test

MCSK has failed the CMO financial administration & Management test. A window cleaner working at MCSK earns more money from MCSK than the top 20 Kenyan artists combined. The process of compiling data and paying members based on usage is stone age-like and remains a pipe dream unless the Kenya Parliament rises to the occasion and adopts the proposals by The Music Advocate Africa available for public engagement and reading at http://www.TheMusicAdvocate.Africa.

Sign the Petition here

https://chng.it/XXKms7Yp

5. MCSK has failed to honor its relationships with other CMOs

MCSK has failed to honor its relationships with other CMOs since its dysfunctional and does not operate to the satisfaction of its members. Without a music data policy that promotes the rights of the Kenyan musicians to easily get their money from foreign markets. 

6.MCSK has failed to honor its obligations to Music Users.

MCSK has failed to honor its obligations to Music Users. The CMO has had a history of disputes with users who question their legitimacy and transparency in the financial management of license fees. For example, in 2017 & 2018 they were successfully accused and found guilty of operating without a valid operating license from the government.

7. Processing of Member’s data is deplorable

Processing of Member’s data is deplorable. From my experience leading clients to their offices to demand music data, it’s impossible to get accurate data concerning their members’ music business. It’s for this reason that The Music Advocate Africa is leading a campaign for the development of a music industry data policy to guide various stakeholders when dealing with music data.

8. MCSK has not invested in reliable IT infrastructure to service completely and efficiently its alleged over 15,000 members.

MCSK has not invested in reliable IT infrastructure to service completely and efficiently its alleged over 15,000 members. Data collection and storage are largely manual and inefficient to meet the demands of a modern CMO. For instance, I once accompanied an artist to inspect their membership file and was surprised that they didn’t have copies of the artist’s music despite the fact that records indicated that the artist had submitted the music in CD format

9. MCSK has failed to develop CMO staff skills that inspire confidence in their membership.

MCSK has failed to develop CMO staff skills that inspire confidence in their membership. From the communication around Nonini’s exit from MCSK, it’s not clear whether MCSK put in place any dispute resolution mechanisms to address the reasons why Nonini was leaving. We wish Nonini well as he begins his journey with ASCAP. The fact that he left MCSK doesn’t mean that MCSK cannot deal in his music in terms of their future blanket license mandate. Even though Nonini doesn’t belong to MCSK membership, should MCSK collect his royalty from Kenya or any market, they will have to submit it to ASCAP or Nonini directly. I believe Nonini will be in a much better position to get his music data from ASCAP since this is still a work in progress in the Kenya Music market.

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