Frequently Asked Questions - General FAQs
The law provides for a search but at the moment due to the manual record keeping it is not practical. The Board is working on an online searchable index for deployment hopefully by July 2016.
Where your copyright is fraudulently registered by another, the copyright law provides a remedy. The aggrieved person is required to write to the Executive Director contesting the Registration and offer evidence of his claim. The Executive Director shall then conduct further enquiries that may include convening a meeting between contending parties to determine true authorship and thereafter may decide to remove the registered work from the Copyright Register or amend the Register in the name of the complainant.
The performer is the person who performs.The author/composer can be a performer.The backup singers, dancers and vocalists will be deemed performers and entitled to royalties for their performance if there is no contract to the contrary or if they have been paid their dues at a flat rate.
Where a song is played on radio or television, the rights holders will be entitled to royalties for the broadcasting right. If the broadcast is transmitted by a third party in a public place for instance in an entertainment venue, the rights holders will be entitled to royalties for the public performance of the work.
There are three categories of rights holders who can claim royalties from the above, namely:
- Composers, authors and publishers (copyright )
- Performers (related right)
- Producers of sound recordings (related right)
The Music Copyright Society of Kenya (MCSK) is a Collective Management Organisation that represents the rights of authors, composers and publishers. It collects and distributes royalties for public performance and broadcasting of their members rights.
It also administers the mechanical and synchronisation rights although the Iatter is voluntary as members may administer these rights individually.The mechanical rights also cover the rights in ringtoness and are entitled to collect the royalties from users.
MCSK also administers the rights of proprietors of the works if they are the bona fide owners and have legitimately acquired the rights from the authors, composers and publishers.
The producers organisation, KAMP, represents the rights of the producers of sound recordings and will also be entitled to royalties accrued from the public performance and broadcasting in relation to the sound recordings. The royalties are collected from the same users as MCSK such as broadcasting stations, entertainment venues, malls, restaurants and hotels. Although they will be collecting from the same users, they will be collecting for the sound recording and not the underlying musical work.
The Performing Rights Society of Kenya represents the performers such as musicians, thespians, actors and actresses, acrobats, dancers among others. They collect royalties on behalf of members for the broadcasting and public performance of their fixed performances.
In the music industry, these are the main rights and they are also applicable over the digital environment.
Non members are entitled to collect their royalties as the CMOs usually grant blanket licence and are expected to keep the money for a period of time and also‚ try and trace the rights holders.
Copyright, like any other moveable property may be assigned to a third party either in part or in whole. This right can also be licensed or inherited. The licence may be for a specific period of time, but once sold cannot be reclaimed without compensating the new owner if he is agreeable. However, this only applies to the economic rights, such as the right of reproduction, distribution. The moral right cannot be sold or licensed in Kenya. The Copyright Act has made mandatory for any assignment or licence to be in writing.
The law of contract is applicable.
The provisions of the current act are still applicable in the digital environment especially in relation to reproduction, distribution, sale among others. There are certain new rights that have come up although they are extensions of existing rights such as the right of making available which is an extension of the right of communication to the public. Such rights are important in the administration of rights from emerging technologies such as ring tones, real tones, view on demand, streaming and webcasting.
The main responsibility for enforcement falls on the rights holder as copyright is a private right. However, collaboration between the rights holders and the law enforcement agencies is important. The Kenya Copyright Board has enforcement department that works with the rights holders and other law enforcement agencies such as the police to ensure that the rights are protected and enforced.
The Kenya Copyright Board is a state corporation established under section 3 of the Copyright Act No. 12ot2001. Its mandate is the overall administration and enforcement of copyright and related rights. The Board carries out public awareness, enforcement, registration of copyright, licensing of collective management organisation and education on matters of copyright and related rights. It coordinates the activities of the copyright industries. Rights holders and users are expected to work with the Board to ensure proper administration and enforcement of copyright as well as create an enabling environment for the growth of the copyright industries in Kenya