Related Rights of Performers in Kenya: An Overview
- Victor Nzomo |
- August 1, 2016 |
Kenya Copyright Act and Regulations define “related rights” as “rights neighbouring on copyright”. There are three types of related rights holders namely, performers under sections 30 and 30A, producers of sound recordings under section 28 and 30A and broadcasters under section 29. A “performer” in the Act is defined as “an actor, singer, declaimer, musician or other person who performs a literary or musical work and includes the conductor of the performance of any such work”. The performer potentially enjoys two distinct sets of rights under copyright namely the related rights in the sound recording and the related rights in the audiovisual work.
The purpose of related rights is to protect the legal interests of certain persons and legal entities who contribute to making works available to the public; or who produce subject matter which, while not qualifying as works under the copyright systems of all countries, contain sufficient creativity or technical and organizational skill to justify recognition of a copyright-like property right. The law of related rights deems that the productions which result from the activities of such persons and entities merit legal protection in themselves, as they are related to the protection of works of authorship under copyright.
The rights of performers are recognized because their creative intervention is necessary to give life to, for example, musical and audio-visual works; and because they have a justifiable interest in legal protection of their individual interpretations. Related rights are often called neighbouring rights (which is a direct translation of the French “droits voisins”).
The concept of an exclusive right for performers is different from that of a copyright work for the obvious reason that a performer’s performance must be exclusive to that performer. An exclusive right is therefore restricted to an exclusive right to do something connected with a performance, such as fixation. In Kenya, section 30 of the Copyright Act enables performers to prevent unauthorized fixation (recording), broadcasting and communication to the public of their live performances without their consent, and the right to prevent reproduction of fixations of their performances under certain circumstances.
The international system of related rights of performers is governed by the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations dating from 1961. For various reasons not all Berne Convention countries are parties to the Rome Convention including the country with the biggest market for related rights, the United States. Since the Rome Convention there have been a number of further conventions extending the scope of related rights, the most relevant of which to music is the WIPO Performances and Phonograms Treaty (WPPT) of 1996.
As explained above, the national system of related rights is governed by Section 30 of the Act provides for the exclusive rights of the performer whereas section 30A provides for the remuneration rights of the performer. Section 30A provides for the right to equitable remuneration for performers and producers of sound recordings to acknowledge the essential contribution of performers and producers of sound recordings in the creation of recorded music. The rights to equitable remuneration are the rights of performers and producers of sound recordings to be paid fairly for the broadcast and communication to the public of their works. It is important to note that as a result, the two related rights collecting societies Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRISK) issue a joint compulsory license to users to pay KAMP and PRISK as long as any sound recording is used within the territory of Kenya.