War Rages on: The Rights and Copyrights of artistes

A couple of weeks before the wave of youth protests swept across the country, the creative sector had been striking the flint with steel-like determination.

They were up in arms following a move by the government through the Kenya Copyright Board (Kecobo) to license the Performing and Audio-Visual Rights Society of Kenya (PAVRISK) to manage all rights in music and for performers in the audiovisual sector for a year.

This was after Kecobo sought companies that possessed appropriate competence to execute the task of Collective Management Organisation (CMO) to apply to be licensed to operate for the current year.

The protesting creatives were baying for the blood of the board's chair Joshua Kutuny and the then CEO of the board Edward Sigei. He recently handed over reigns to George Nyakweba, who is the new CEO.  

As the countrywide protests gained momentum, it was only a matter of time before artists from different fields joined the bandwagon - the alternative was facing the dreaded cancel culture.

This meant being cut off from any connection they had with their fans. From unsubscribing from the perceived foe official accounts to massive ‘unfollowing’ on social media platforms.

As the storm of agitation by the youth swept across the country, the protests morphed into curated spaces where matters of national importance were discussed.

Recently, some creatives hosted by Nonini on X talked about the status of the music industry.  In it, many laid bare their thoughts with frustration being the common theme.

Bon Eye of P Unit group gave a lamenting analogy of how the music business is corrupted, with cartels having a stranglehold on the entire industry.

“After our song Kare became a hit, I approached Nonini and asked him how we were making money out of it and that is when he told me about copyrights and all. We then went to the Music Copyright Society of Kenya Offices with our lawyer where we asked about royalties. One of the officials then brought a log that showed that they had made Sh400. After making noise, two weeks later, they called us and we were paid Sh300,000,” he says.

Bon Eye encourages young artistes to get acquainted with matters of copyright so as not to get exploited.

“After that incident, we withdrew our mechanical rights at MCSK and got to know other avenues where people were exploiting our art, I would encourage young people to get to know about these issues,” he says.

Bon Eye believes the existing structures including Kecobo and CMOs are good for industry with the people running them being the thorn in the flesh.

Singer and artivist Shizzle says he and fellow agitators have been asking for the repeal of section 46 of the Copyright Act.

“It is currently possible to be in any CMO as long as what they are doing fits into the CMO. Now section 46 has it that no more CMOs can be registered to administer the same right. This is an infringement of our rights because our constitution allows us to be in any association,” he says.

Shizzle says artistes should train their guns on that specific legal issue and ask members of Parliament to amend it.

“It is unfortunate that the people who have been in the industry and get a chance to be in the August House do not make such moves to help the industry. We need to inform more people about how the system is set against them and how we can join hands and make the desired change,” he says.

He adds: “Unfortunately despite having several sit-downs with former Cabinet Secretaries Ababu Namwamba and Aisha Jumwa, we even had the music summit, and yet we sound like a broken record. Nothing is happening and it is time that the executive works on this issue.” 

Upon inquiry by the Pulse on the status of the petition communication from Aisha Jumwa, the then Cabinet Secretary in the Ministry of Gender, Culture, The Arts and Heritage indicated that the matter had been under consideration with the CS asking for further legal interpretation.

“The former CS was to meet both the management of Kecobo and the board to come up with interventions on this matter of royalty collection,” stated the communique.  

Wadagliz, who have taken over the streets (literally) with their song Anguka Nayo can thank their management for copyrighting their work. Little birdie has it that they are lining up a couple of suits against companies infringing on their intellectual property rights.

The film industry is not better either. The wind of change is slowly blowing, filling the sails of the overdue ship.

Filmmaker Kevin Njue has been adamant on the need to create awareness of draconian laws which he says affect filmmakers.

“One of the issues we need to be addressed by this incompetent administration includes Repealing of Cap222. This is the law that the Kenya Film and Classification Board (KFCB) uses to oppress filmmakers. The law is outdated and colonial,” he says.

Kevin says enforcement of the programming code clause 5.3 (Requirement on local content) by the Communication Authority and CAP 222, Section 5, which states that no movie may be shot in Kenya without a shooting script approved by KFCB.

“Sections 8 and 9 further complicate the process of editing a script after acquiring a filming license. It can only be done with approval from KFCB. Section 9 gives the KFCB boss the right to have a policeman present during a movie shoot. But not just that; it gives the said officer the right to stop the film reel running if he does not like what is going on,” he says.

“When you look at Clause 5.3.1 of the programming code: Free To Air (FTA) broadcasters shall within one year of award of license ensure that at least 40 per cent of their station programming is local content. The local content programming referred to shall exclude news and advertisements. It is important to notice that all major FTAs do not meet this requirement because they refer to news features as local content.”

For writers wishing to join the murky waters of the creative industry, there is much to learn when it comes to protecting their intellectual property (IP) rights.

Maison Ole Nkurrunah, a published writer and poet says the lack of knowledge in the most basic IP principles or frameworks between young writers and publishing houses (especially independent publishers) is an issue.

“One needs to ask important questions before diving into this industry such as Is it the author or publisher who owns the work once published? A writer knowing both basic and subsidiary rights to their work and how the publishing system works is key to avoiding future issues that may arise,” he says.

Maison acknowledges that the Kenya Publishers Association has been making inroads towards assisting through book festivals where writers or budding writers can know their rights when it comes to registration of their work.

“One must get to know how copyrights to published works are being used and other sub-rights such as translation to other languages, adaptation to film and rights for excerpts to be used in other works. These, however, apply when you publish with a publisher and you contractually accord them as an author the rights to do them,” he says.

As the discussions around the creative industry keep simmering up, there have been meaningful steps which a section of industry players feel are worth talking about.

Sharon Wata, the Deputy Executive Director Training and Research at Kecobo who also recently spoke at a Copyright Masterclass on navigating music licensing and Protection in the digital age, says there is a need for creatives to know how the board operates and how they can use the law to protect their work.

“The first line is to appreciate that there are sufficient provisions in law to protect their rights. For many issues we deal with it starts with contracts. Artistes rarely read what they sign - they need to ask what rights they are giving away. Here at the board, we have people who are ready to give free legal advice on such matters. All they need to do is send us the contacts beforehand and we will help them out,” she says.