Address legal and policy issues to unlock creative sector’s potential

During the burial of popular Gikuyu musician John De’Mathew last Saturday, President Uhuru Kenyatta announced that his government will move the Kenya Copyright Board (Kecobo) from the Office of the Attorney General to the Ministry of ICT as part of measures to protect musicians from exploitation.

The President’s sentiments mirror those of industry players, who feel that Collecting Societies are not complying with the law. Indeed, Collecting Societies are required to spend 30 per cent as administrative cost while the remainder goes to artists in form of royalties. This practice is the hallmark of the Intellectual Property Rights doctrine.

The Constitution makes a strong case for the protection and promotion of music as a form of cultural expression as well as a property whose owner should be protected from unlawful deprivation. Article 11 requires the state to promote the intellectual property of the people of Kenya. Article 40 of the Constitution provides for the right to own property of any kind. Article 260 (c) has for the first time included intellectual property in the definition of property.

However, despite these constitutional provisions, the intellectual property realm, including its ill-fated creative industry, has attracted minimal attention from politicians, policy makers and regulators, despite its huge potential in the economy.

To cure this mischief, there are a raft of proposals, including the Presidential pronouncement of moving Kecobo to the ICT ministry. Other initiatives include the amendments to the Copyright Act. The Amendment Bill is before Parliament awaiting debate and passage. Luckily, the President has indicated his willingness to assent to it as soon as Parliament dispenses with it.

The Copyright Amendment Bill introduces noticeable changes in the way the copyright industry will be managed. For instance, the bill introduces a new Section, 30 (b) which defines parameters for collecting and payment of royalties. The proposed changes will allow Kenya Revenue Authority (KRA) or any other entity designated by Kecobo to collect royalties on behalf of Collective Management Organisations, which are legally licensed to represent performers and owners of sound recordings. This will remove encumbrances of collecting royalties from CMOs. This will translate into reduced operation cost and an increase on royalties paid to artists.

To ensure efficiency in the management of this sector, Section 46(b) makes it mandatory for directors of a collective management organisation (CMO) to hold a certificate, a diploma or any other post-secondary qualification obtained after a period of at least more than one month of study. Such a director will serve for a term of three years and is only eligible for re-election for a further single term of three years. On the other hand, a chairman will now hold office for a single term of three years and is not eligible for re-election while a chief executive of a collective management organisation shall serve for a term of four years and is eligible for a second term of fours years but on approval by Kecobo.

The bill empowers Kecobo to suspend or remove any officer of a CMO who contravenes the law, issue directions regarding measures to improve management of a CMO, order reconstitution of a CMO’s board, place a CMO under statutory management or revoke its licence.

The proposed transfer of Kecobo to the ICT Ministry will herald a new dawn to the creative sector. Once this is done, the ICT ministry should crack the whip and ensure that all licensed broadcasters, telecommunication operators and internet providers pay their royalty dues within the confines of the law.

“I have instructed the ICT ministry to ensure that before renewal of licences for broadcasters and telecoms, they must pay what they owe artistes,” said the President.

If this directive is implemented in toto, it means that over 60 free-to-air TV stations and over 130 radio stations will be compelled to pay their royalties which, sadly, they have given a wide berth in the current arrangement.

The Communications Authority (CA) and Kecobo should sensitise artistes on their intellectual property rights and ensure strict enforcement of the broadcasting code to ensure that local media stations abide by the prescribed local content quantum. This will in effect ensure that Kenyan artistes receive substantial royalties for use of their works by the broadcasters. Given that Kenya does not have a CMO specialising on audio-visual works, time is nigh for Kecobo to facilitate establishment of a standalone CMO to collect royalties on behalf of audio-visual artistes.

The proposed changes will help to promote sound corporate governance, improve efficiency in royalty collection and distribution as well as ensure the creative industry in Kenya makes real and tangible contributions to the economy.

Dr Njoroge, an expert on intellectual property, is the Vice President of Public Relations Society of Kenya;