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CopyrightNews
ISSUE 24
IMPROVING THE COPYRIGHT LEGAL FRAMEWORK
FEATURE
The Impact of Proposed Regulations on CMO Management
By. Angela Ndambuki
e essence of copyright is to grant
exclusive rights to the owner of works.
However, where such rights are impractical
to administer individually, then a collective
management system is important to collect
the royalties.
Collective Management Organisations
(CMOs) make it possible for the
rightsholder to concentrate on their core
work- which is to create, perform or to
produce- while it works on collecting
license fees from users of copyright and
related rights and distribute royalties or
remuneration to the rightsholders.
e collective management industry in
Kenya is faced with constant cases of
lack of transparency and accountability
to the rights holders. Such cases have
aracted political aention and resulted in
politicization of CMOs’ operations.
is has impeded the very noble goal
of fairly compensating rightsholders.
Whereas not all CMOs have been accused
of failure to account for licensing revenue,
the accusations that have been made have
adversely aected the entire Collective
Management industry.
By default, the image of the Performers
Rights Society of Kenya (PRISK) which
is one of the CMOs, has been aected
despite the societys constant advocacy for
a culture of transparency, accountability
and good governance in accordance
with international best practices and the
principles of collective management of
rights.
It is against this backdrop that PRISK has
extended support to the Kenya Copyright
Board (KECOBO) in seeking to have in place
the Copyright (Collective Management)
Regulations, 2017 (hereinaer referred to
as CMO Regulations). ese regulations
are anchored on World Intellectual
Property Organization-WIPO’s core values
for CMOs i.e. Transparency, Accountability
and Good Governance, otherwise known
as TAG for Excellence.
e elementary object of WIPO’s TAG
for Excellence is ensuring and improving
Transparency, Accountability and
Governance of CMOs in Development.
In regard to governance, WIPO underscores
the importance of inculcating a culture of
good governance in the CMOs buressed
by professional ethics, particularly in the
following areas; Organization of general
meetings; Internal supervision; nancial
administration, distribution of revenue and
deductions; and development of sta skills
and awareness as well as fair remuneration
of sta.
e proposed CMO Regulations further
compare heavily to the directive 2014/26/
EU of the European Parliament and of the
Council of 26 February 2014 on collective
management of copyright and related rights
and multi-territorial licensing of rights in
musical works for online use in the internal
market.
Since it is noted that there is need to
introduce the core values of TAG in the
functioning of the CMOs, the aim of the
directive is to “…lay down requirements
applicable to CMOs…to ensure a
high standard of governance, nancial
management, transparency and reporting.
ese are functionally the principles
of TAG. e proposed Regulations,
therefore, have adopted these principles as
international best practices.
e proposed regulations shall denitely
improve the operations of CMOs through
enhanced supervisory structures. It will set
in place statutory parameters and standards
for assessing the performance of CMOs as
well as conditions and procedures under
which a CMO can be put to task to prove
its commitment to upholding the values of
TAG.
is shall save the CMOs from having to
deal with wrong perceptions propagated in
the media. ey will also establish a modus
operandi for rightsholders and users to
raise their concerns and complaints about
the CMOs.
It is a well agreed principle that a CMO’s
rst obligation is to its members. e
regulations provide that CMOs have to
put measures in place to ensure eective
and timely complaint procedures for its
members especially in dealing with rights
management such as distributable amounts
complaints including collected amounts,
deductions and distributions.
Further, issues of terms of membership
and termination or withdrawal of rights are
also taken into account. Good governance
demands that members should be allowed
to take part in decision making processes.
e Regulations, therefore, provide that
there should, at least, be one Annual
General Meeting and provisions of special
or extra-ordinary meetings to address other
urgent maers.
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