Introduction

Visual arts, as the name suggests, are works of copyright that appeal to the visuals. In contradistinction to performing arts, they are complete whether or not they have been performed before an audience. Whereas performing arts must be performed before an audience.¹ Visual arts include paintings, drawings, sculptures, etc. and are also known as artistic works.²

While the protection of copyright works is straightforward in that works are not subjected to any formality checks³, the administration of royalties in such works can be complicated. The complication is compounded by the fact that it is not easy to monitor the use of one’s copyright works and hence not possible to negotiate license terms with every user. It is for this reason that Collective Management Organizations (CMOs) come into play.

Collective Management of Copyright in Kenya

In Kenya, the Copyright Act provides for the establishment of Collective Management Organizations (CMOs) which are private companies limited by guarantee and incorporated under the Companies Act 2015. The licensing and supervision of the activities of CMOs is done by the Kenya Copyright Board (KECOBO).⁴ To this end, KECOBO cannot license a body as a CMO in respect of works already being administered by another CMO⁵. This means that if, for instance, CMO ‘X’ administers copyright in literary works, CMO ‘Y’ cannot be licensed to administer copyright in the same works.

The collective administration of copyright in visual arts has hitherto not been actively pursued in Kenya. This is evidenced by the historical development of the CMO industry which can be traced back to 1983 when the Music Copyright Society of Kenya was registered.⁶ The CMO administers the rights of musicians i.e., composers, publishers, and arrangers of music. In 2003, the Kenya Association of Music Producers was formed with the mandate of administering the rights of music producers.⁷ The Performers’ Rights Society of Kenya (PRISK) was incorporated in 2009 to administer the rights of performers. These three are the active CMOs in Kenya as the Reproduction Rights Society of Kenya commonly known as KOPIKEN has not been active in recent years. KOPIKEN was incorporated in 2005 with the mandate of administering copyright for authors and publishers of literary works. Additionally, in 2017, the Music Publishers Association of Kenya (MPAKE) was licensed in place of MCSK, but the license was withdrawn a year later due to its inability to effectively administer copyright.

Visual Arts

It can therefore be seen that among all CMOs that operate or have operated in Kenya, none has ever been formed with the sole mandate of administering copyright in artistic works/visual arts. However, KOPIKEN, as a reprography CMO or Reproduction Rights Organization (RRO) also had the mandate of administering the rights of visual artists when their works are reproduced in books or other materials. Several other RROs, for instance in the South African Dramatic, Artistic and Literary Rights Organization (Pty) Ltd (DALRO) also manage this right.⁸

The 2019 amendment of the Copyright Act introduced a provision on the Artist Resale Right⁹ and further states that visual artists can form a CMO to administer the right ¹⁰ and that in the absence of a germane CMO, the Attorney General may designate a CMO to perform the function. The board (KECOBO) may also assist in setting up a CMO for any class of copyright owners including visual artists. The question that begs then is, why hasn’t the Attorney General designated any CMO to administer the artist resale right or why hasn’t KECOBO done anything to help establish the relevant CMO?

Basis of the Artist Resale Right (droit de suite)

The Artist Resale Right (ARR) has its origin in 19^th century Civil Law France when it became clear that the author’s rights (droit d’ Auteur) system was not adequate to sufficiently reward visual artists for their creations.¹¹ Prior to 1920, there arose a public outcry due to the poverty in which poor visual artists and their heirs languished after the first sale of their artwork. Once the works were sold, the artists had no part in the subsequent resales while art collectors reaped lots of money from resales. Visual artists lacked the benefit of what other copyright work creators e.g., publishers and musicians had in reproduction and performance, respectively¹².

As indicated, the ARR originated in Civil law France where the emphasis is on protecting the author as opposed to the work, which is emphasized in Common Law legal systems.¹³ As such, the ARR had a welfare component to it. After much push and pull between Common Law and Civil Law jurisdictions, the former, perceiving it as a form of tax which was punitive to purchasers, while the latter viewed it as a necessary welfare safety net, it was adopted in the EU as a directive¹⁴. The same is also provided for in the Berne Convention¹⁵. Today, the ARR finds itself in several Common Law legislations, Kenya included, yet its justification was not copyright protection for artists, rather a welfare justification.

The imposition of the ARR in copyright legislations has created a misplaced justification for copyright. The aim of copyright is not to create a welfare system for wealth redistribution, rather to reward successful creators of copyright works.¹⁶ However, in the EU and based on the EU Artist Resale Right Directive, some countries, for instance, Germany ¹⁷ have drafted laws and policies that have enabled them to merge the Intellectual Property Right (IPR) with the social welfare aspect of the resale right. The German Act on Copyright and Related Rights¹⁸ makes clear provisions regarding the inalienability of the right as well as who bears the responsibility of providing certain information to ensure that the remuneration is received by the copyright holder.

The Artists Resale Right in Africa

According to the International Confederation of Societies of Authors and Composers (CISAC), as of 2014, Algeria, Burkina Faso, Morocco, Mali, Ivory Coast, Congo, Gabon, Madagascar, Senegal and Tunisia were the only African countries with legislation on the Artists Resale Right.¹⁹ Kenya has since joined the list by virtue of the 2019 Copyright (Amendment) Act which introduced the right.²⁰ A comparison of the Kenyan provisions on the Artists Resale Right and the Burkina Faso provisions²¹ reveal a gap in the Kenyan Law. While the Burkina Faso Law clearly obligates the officer through whom the sale is conducted to notify the author or respective CMO of the sale, deduct the prescribed amount and remit it to the CMO, the Kenyan Law lacks that provision. Such notification should be done within three days of the sale.²²

The Kenyan Act is however silent on how the resale royalty is to be administered. Section 26D states that in the absence of a CMO to manage this right, the Attorney General shall designate any of the existing CMOs to administer it. It then prescribes the rate of five percent of the net selling price that is payable as the resale royalty. Two major gaps can be seen here:

1. Whose responsibility is it to notify the Attorney General to designate any of the CMOs to administer the ARR? How is the AG expected to know that the need to do so exists? A motion must first be moved and this ought to come from the visual artists, probably through KECOBO. The Attorney General cannot act Suo moto.

2. How is the rate of 5% of the selling price to be enforced? In contrast to the Burkina Faso law, the Kenyan Act is silent on how the CMO is to administer the right. Subsection 4 of the Act states that:

“The resale royalty shall be payable at the rate of five percent of the net sale price on the commercial resale of an artwork and the seller, the art market professional, the seller’s agent and the buyer shall be jointly and severally liable to pay the resale royalty.”

It does not stipulate at which stage the CMO gets involved nor does it state who holds the seller, art market professional, buyer and seller’s agent to account in the transaction. The Copyright (Collective Management Organizations) Regulations 2020 are also silent on the same.

The difference in the provisions found in the Burkina Faso law and the Kenyan law can be attributed to the legal systems of the two jurisdictions. As a former French colony, Burkina Faso has incorporated provisions that make it possible for the right to be administered for the benefit of artists in a welfare-like arrangement. It is highly likely that the drafters of the Burkina Faso law, were influenced by the French law on the ARR. The case in Kenya is however different because of its common law background. As such, it lacks sufficient details on how the right is to be administered. It was necessary to understand what initially informed the incorporation of the ARR in the civil law jurisdictions before introducing it to the Kenyan system.

Conclusion

It therefore follows that even with the introduction of the ARR in Kenya, its administration and enforceability may not be possible with the law as it is. The first step would be for all visual artists to unite and form an association. This already exists by virtue of the Kenya National Visual Artists Association (KNVAA)²³ which is an association uniting all visual artists with offices in all 47 counties. With the enactment of the ARR, it is imperative that proactive steps are taken to provide both legal and policy frameworks for the proper administration of the right. Visual Artists ought to speak with one voice too and lobby for the proper administration of this right.

Additionally, with the incorporation of the ARR provision in the Act, a further amendment may be necessary to put in place more information. Regulations must be made to also give effect to some of the provisions for instance, what would inform the AG to designate a CMO to administer the right? There ought to be some regulations on how KECOBO should go about helping to establish a CMO. It must be understood that KECOBO is a government entity mandated to administer and enforce all matters of copyright, but it is not mandated to help collect royalties which is a private responsibility of copyright holders. Its responsibility on royalties is limited to managing and supervising CMOs. It may therefore be difficult for KECOBO to help establish a CMO which it would have a responsibility to supervise without raising serious conflict of interest questions.

Image  by Robert Munguia from www.wallpaperkiss.com