Copyright Board To Review Guidelines for Collective Management Organisations

This blogger has learned that KECOBO is in the process of the review its CMO Guidelines titled “Guidelines for Licensing Collective Management Organisations”. These CMO Guidelines are available on KECOBO’s website here. Therefore, this blogger hopes to provide an in-depth examination of the Guidelines while making comments on important areas and issues connected with the Guidelines.
In coming up with these Guidelines, KECOBO explains in the opening paragraph that it is mandated under the Act to license and supervise CMOs in Kenya so to ensure that CMOs carry out their core function, namely the collection and distribution of royalties. It is noteworthy that since 2011 when the Guidelines were introduced, KECOBO has been enforcing these Guidelines against CMOs despite the fact these guidelines have no force of law. It is therefore advisable that KECOBO causes the inclusion of these Guidelines in Regulations to be made by the Minister (Attorney General) under section 49 of the Act.
Notwithstanding the legal force of these Guidelines, this blogger has the following comments to make on the Guidelines:
1. Title: this blogger suggests that the title of the Guidelines be amended to include “and Supervising”.
2. Public Notice: KECOBO may wish to include a time frame within which notices shall be published to increase KECOBO’s accountability and transparency. In addition, KECOBO may wish to specify which platform(s) will carry the public notices eg. local dailies with national circulation, KECOBO’s official website, KECOBO notice board?
3. Licensing: In the spirit of transparency and accountability, KECOBO may consider including a time frame within which licenses shall be processed once all application documents are submitted.
4. New Applications: The requirement under (g) appears vague and KECOBO may consider specifying what documents would be required to satisfy that the applicant has the “capacity for collection and distribution of the royalties”.
5. Renewal of License: To avoid duplication of documents submitted by licensed CMOs, the requirements of (a) and (b) should be removed. In the alternative, the requirement (b) should be qualified for cases where the memorandum and articles of association have been amended.
With regard to requirement (i), submitting individual deeds of assignment for each and every member may be onerous for most CMOs due to the sheer bulk of documentation to be produced. At any rate, KECOBO may decide to verify the deeds during an inspection visit to ensure that it corresponds with the list of members submitted.
6. Revocation of a license: The CMO Guidelines have made several additions to the grounds provided under the Act. However the wording and punctuation of this list of grounds for revocation is ambiguous as it does not disclose whether all the ten (10) listed grounds must be present for revocation or whether the presence of one or several grounds is sufficient.
In sum, this blogger submits that the Guidelines play an important role of supplementing the existing legal provisions on licensing and supervision of CMOs found in the Copyright Act, 2001 and Copyright Regulations, 2004. However these Guidelines ought to be given the force of law in order for KECOBO to enforce them against CMOs.
Editor’s note: The author currently works with MCSK however the views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.

  1. Chebet
    I think it is critical for KECOBO to spell out clearly the limits and mandate for each collecting society. Kenya's CMO 'scene' is laden with CMOS all demanding royalties and claiming to collect for 'their' members. This is especially exasperating in music royalties. First, there is often a duplicity in members, with an artiste' (say a 'musician') being a member of PRISK and MCSK for example. Secondly, the rights that such members 'give' or cede to the CMO are not always worth the paper they are written on. Oftentimes, it is actually the music producer (who is then a member of KAMP) who has the economic rights in a particular piece of music (a song). So, when PRISK, KAMP and MCSK come knocking with each asking for royalty payments on behalf of their members for a licence to use/play a song, my knee-jerk reaction is usually to say I will not pay anything until it is clear to whom, why and for what I am paying. But that does not solve the problem. There should be a clear and transparent way for any licensee to ascertain that these CMOs have the rights they claim they do- so evidence of assignment of rights in the music and evidence that the assigned rights exist in the first place! Actually, most licensees usually want to pay for the music, in a sense to pay for the right holders 'sweat of the brow'. The problem is the current convoluted way in which CMOs operate in Kenya. I would recommend and suggest that KECOBO puts in place, as part of its supervisory role, a recording system for all rights that CMOs have. For example, this means having a database of members and their copyright protected works which also has documents evidencing their claim to ownership of copyright (say an artiste/musician saying he 'sang' the song meaning he has a copyright in the performance etc). This database can then be open to investigation by licencees who would wish to ascertain claims as to ownership of copyright in order to determine the veracity of the claims by CMOs. In my experience, music producers tend to be assigned to all copyright in the music (assigned to by the other copyright owners) and in such a case, the performer/artiste' would not have any residual economic rights in the song, and accordingly, a CMO claiming to collect royalties on behalf of such an artiste for that particular song would have no entitlement to royalty payments. I therefore think it is essential for KECOBO to put in place mandatory rules on how/where these CMOs have their rights and the repertoire of music or publications etc that each has rights in respect of. This, I believe, will really sanitize the copyright royalty collection situation in Kenya.
    • John
      Chebet, On your first paragraph, I think KECOBO's licenses to MCSK, PRiSK & KAMP are clearly spelled out and they include the category of works and the respective rights holders. They're also gazetted. On your second paragraph, members of MCSK and PRiSK are entitled to royalties from both CMOs, regardless of the fact that the royalties may be going to the same person. Secondly, there may be instances where the owner of the sound recording may also control a lion share of the rights in the musical work but I highly doubt it will always be a 100% share. I agree with you that it perfectly in order for a licensee to be furnished with evidence of assignment however in the case of the related rights CMOs, the new section 30A has introduced a regime of compulsory licensing. On your third paragraph, my bet is that KECOBO will insist that any licensee with queries on the assignments of a CMO will be told to deal with that CMO directly, except in cases covered under section 48 of the Act. On your fourth paragraph, it really depends on the nature of the commercial exploitation. A good case in point would be synchronisation rights, which are not always assigned to the owner of the sound recording. On your fifth paragraph, KECOBO is encouraging CMOs to embrace ICT which, I presume, would include making certain information relating to reportoire and rights publicly available online. Although this may be a pot-kettle issue since KECOBO has thus far been unable to avail its repository of all registered copyright works in the country. The key to sanitise the collective administration of copyright and related rights in Kenya is certainty and predicatability. All tariffs and license terms and conditions must be published (or even gazetted) and the Competent Authority must be operationalised immediately to deal with the rising number of issues between licensees and CMOs.
  2. vnzomo
    Hello Judy (Chebet) and John, Thanks for the comments. I've forwarded them to KECOBO so that they may consider them in their review of the Guidelines. For me, the biggest issue has always been the huge lack of awareness among the public, especially licensees. This is an on-going effort to be undertaken by both KECOBO and the CMOs, jointly and severally as it were. Secondly, I feel that given the complex nature of the music industry both local and international, due diligence is key. If you're acting for a licensee, it is your job to know who does what and who is entitled to what. For instance, on numerous occasions, I have blogged about entities like Safaricom who find themselves in these embarassing cases with musicians simply because there was no proper due diligence to ascertain whether the PRSPs and CSPs contracted have valid and complete licenses. Thirdly, it would be interesting to see how KECOBO addresses the issues both of you have raised touching on mandate, representation and repertoire. I think it would be a case of over-regulation if KECOBO went to the lengths you've both suggested, solely for the benefit of licensees. KECOBO's job is to license and supervise CMOs. Therefore I think the onus still rests with the licensees as I've explained above regarding due diligence.
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