WHY THE CREATIVE ECONOMY IN KENYA NEEDS A NEW CMO LEGAL FRAMEWORK

PART 1 OF THE 13 REASONS WHY

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. However, the Kenya Music Industry is in problems due to failure of CMOs. This failure is as a result of an incompetent legal framework riddled by conflicts of interest and uncoordinated legal amendments that violate creator interests.

LISTEN TO AUDIO CALL TO ACTION

By George Robert Asewe Dj Probert

The system of Intellectual Property Rights in the Creative Economy is an important factor that determines the success of Kenya’s creative sector. In my 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.

Did you know that the definitions part of the Kenya Copyright Act doesn’t define what a CMO is. The Act acknowledges the importance of CMOs and mandates the state to licence qualified organisations. 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. 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 into inadequate & inefficient application of law. This is the case in Kenyan music.

the health status of kenyan cmos is worrying

I consider the current rules, regulations & law inadequate since they have failed to protect rights holders from inefficient CMO operations. How can an important component such as this be missing at a time when the value of African music is steadily taking over the global music market. Another absurdity i find in the system is that the Act provides for the registration of CMOs but fails to define key roles and obligations in the substantive text of the Copyright Act. The net result is that we have a situation where Kenyan CMOs are causing unjust suffering to rights owners.

The CMO Regulations give the regulator a lot of police powers over CMOs. 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, public spaces & matatus that fail to pay for music licences. 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 members royalty.

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.

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However, the advent of streaming and online distribution has posed a significant challenge for the management of music 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 are also creating challenges. A lack of confidence in the veracity of the information and difficulties with access cause serious challenges for CMOs in Africa.

Additionally, inherited frameworks in technology, 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. The protocols have been 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 collaboration between collective management organisations.

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 Kenyan Music 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 system that is built upon content attribution. Kenyan CMOs have a Data Credibility Crisis. In my dual role as entertainment lawyer and magazine publisher I have come across cases where CMOs are unable to provide performance data even for popular acts enjoying massive airplay. I have concluded that a robust legal framework governing music data will be the only solution to end this unfair state of affairs.

Image of old CMO Membership register

The application of computers to solving complex business problems is well established. However there is a move towards using mainstream artificial intelligence (AI) also known as machine learning (ML) techniques which is a big departure from previous practice. Previously, most business problems were solved by processing data with logic, not learning from the data itself via algorithms.

Netflix recommendations are built on data

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.

LinkedIn has 300 billion events in which data is used every 24 hours

Kenyan CMOs have failed in building Music Data confidence. We don’t have a music data policy guiding the industry at a time when data is the new oil in music. If Kenyan CMOs embrace technology an join global music market networks we shall be on the fast track to restoring and promoting the interests of rights holders.

Uber tracks data from rides and drivers to match them up and select the best journey.

COnflict of IntErest Between Music Industry Stakeholders

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 interest. CMOs operate in monopolistic environments. They enjoy monopoly. We shall be demonstrating in our series of publications and podcasts how Kenyan CMOs have failed to protect rights holders because of abuse of monopoly laws that have effectively killed competition in the Kenyan CMO space.

Even though many CMOs enjoy monopoly in various music markets with the exception of America which allows competition, there is overwhelming evidence of abuse of monopoly power in Kenya. These arrangements put in danger the rights of creators since there is no oversight law guarding such arrangements The Music Advocate Africa has formulated a solution for the Kenya Music Market.

What happened in THE KENYA MUSIC MARKET IN 2020 & 2021 During Covid

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.

Collective Management enables rights holders to earn money from sources like radio and tv where it is impractical or impossible for the artist to individually monitor. It is equally impractical and impossible for broadcasters to individually obtain single licences from every musician or rights holders.

In Kenya, this system has persistently failed resulting in a continuous blame game approach between music owners, users & the copyright regulator Kenya Copyright Board. This failure has adversely affected music rights holders in the Kenya Market. In August 2021 KeCoBo deregistered MCSK, KAMP & PRISK. This is not the first time. It seems to have become the norm every year. KeCoBo has publicly stated that its decision was influenced by failure of the CMOs to comply with regulatory targets attached to their annual licences.

Image of Official Logo of The Kenya Copyright Board
Official Logo of The Kenya Copyright Board
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