7
CopyrightNews
ISSUE 24
IMPROVING THE COPYRIGHT LEGAL FRAMEWORK
FEATURE
Why Artists Are Upbeat About New CMO Regulations
By. Faith Amatika
Section 49 of the Kenyan Copyright Act
mandates the minister to make regulations
generally for the beer carrying out of
the provisions of extensions of the Act. It
is under this provision of the law that the
Aorney General has draed regulations
to be known as the Copyright (Collective
Management) Regulations.
ese regulations are meant to govern the
functions of collecting societies, commonly
known as Collective Management
Organizations (CMOs). A collecting
society is dened in the dra regulations as
an organization which has as its main object
or one of its main objects, the negotiating
for the collection and distribution of
royalties and the granting of licenses in
respect of copyright works or performer’s
rights. Among the provisions of the
regulations are maers of registration of
collecting societies, where it is provided
that registration of collecting societies shall
be done in more or less the same manner
as the registration of companies under the
Companies Act.
Distribution of royalties
e regulations also provide for the
distribution of money collected to the
rights holders, where CMOs are mandated
to distribute and pay regularly, diligently
and accurately amounts due to rights
holders.
In the spirit of Article 118 (1) (b) of the
Kenyan Constitution 2010, the Kenya
Copyright Board, in conjunction with some
of the registered CMOs carried out public
forums to engage the public, particularly
rights holders, in the dra regulations and
to get their views. ese forums were held
in various parts of the country on dierent
dates. In Nairobi, it was held on 21st
February 2017, Eldoret on 23rd February
2017, Kisumu on 28th February 2017,
Mombasa on 2nd March 2017 and in Isiolo
on 7th March 2017.
During the forums, most of the rights
holders expressed dissatisfaction with
the manner in which CMOs have been
handling their aairs particularly the issue
of collection and distribution of royalties.
For them, it was a sigh of relief that nally
regulations were underway to govern the
functioning of the CMOs. Some right
holders came out very strongly and blamed
the centralization of CMOs for their woes.
ey proposed a devolution of the CMOs
to enable them articulate their issues with
ease. ey reasoned that having one CMO
which holds an Annual General Meeting
once a year handling the issues of over
15,000 rights holders was not practical, as
they were not able to adequately ventilate
their grievances. e right holders proposed
regional AGMs. Some were of the view
that regulation 8 on the dismissal of the
directors should be amended to provide for
dismissal of directors not only once a year
i.e. during the AGM, but also as and when
reasonable need for such dismissal arises.
e public forums also revealed that
ignorance and lack of understanding was
one of the problems aecting the rights
holders.
Related rights
Some businessmen who aended did not
understand why they had to pay for three or
so dierent licenses in order to play music
in their places of business, for instance in
restaurants. ey did not understand the
concept of related rights where perfomers
and producers, for instance, have rights
independent of the copyright owner. It
was apparent that there is, therefore, need
for education and training to educate the
public and artists and remove the mistrust
with which some rights holders have for
CMOs.
Some artists claimed the wording was
too complex for them to understand and
requested the regulations be published in
Swahili. Rights holders also wanted the
regulations to clearly stipulate the taris to
be used by CMOs. ey wanted regulation
13 to clearly stipulate the distribution
schedule in terms of percentages, for
instance, indicating what percentage the
right holder should get and what percentage
a particular CMO should be entitled to.
Tracking royalties
Others proposed the employment of
modern technology in tracking royalty
payment to right holders to solve
transparency problems when it comes to
distribution of royalties. ey proposed
having a website where issues of distribution
of royalties could be addressed.
Having regulations that will completely deal
with corruption in the CMO management
was another widely agreed-upon proposal.
ey recommended the imposition of nes
that are commensurate with the amount
embezzled. For instance, they argued,
regulation 29(5) should be amended
to be commensurate with the amount
in question. Rights holders were of the
view that if the amount in question is, for
instance, Sh20,000,000 a ne of Sh100,000
would be nothing for the person who has
commied the oence. ey proposed that
the nes be enhanced to be deterrent in
nature.
Most of the grievances stemmed from poor
management and lack of transparency by
some CMOs. In light of this, other artists
proposed forming CMO solely composed
of artistes (right holders). ey felt that
CMOs were not adequately addressing
their concerns. In the circumstances one
has to remain optimistic that once the
regulations are operational such issues will
be ironed out.
Musicians keenly listen to a presentation during a training session by Kenya Copyright Board ocers at Wogect Hotel in Mombasa.