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Opinion on the proposed regulations for Kenyan Collective Management Organisations

In February, I was invited to give independent academic opinion in a stakeholder meeting, organised by the Kenyan Copyright Board (KECOBO),[1] on the proposed regulations for Kenyan Collective Rights Management Organisations (CMOs). The meeting, held in Nairobi on 21st February 2017, was the first of a series of stakeholder meetings held across Kenya in the context of the consultation process launched by KECOBO. KECOBO is, amongst other things, the supervisory authority in charge of licensing and supervising the activities of CMOs.[2]

With my colleague Dr Smita Kheria,[3] we were invited by KECOBO[4] and PRISK,[5] the Performers Rights Society of Kenya, to give independent academic opinion on the draft CMO regulations which had just been made available to the public on a dedicated consultation website.[6]

Our role was to compare the Kenyan draft regulations, in their version of the 6th of February,[7] with the European legal framework for CMOs as well as with the implementation of the said EU framework in the United Kingdom and France. The European Union framework was updated by EU Directive 2014/26[8] which notably aimed ‘to lay down requirements applicable to collective management organisations, in order to ensure a high standard of governance, financial management, transparency and reporting.’[9] The United Kingdom and France had only very recently implemented the directive in their national copyright laws with, respectively, the Collective Management of Copyright (EU Directive) Regulations 2016[10] and the ‘Ordonnance n° 2016-1823 du 22 décembre 2016[11] (amending the French Intellectual Property Code).

In launching the consultation process, KECOBO articulated similar goals to those of the directive, namely ‘to create a workable Collective Rights Management Regulatory framework that promotes transparency, accountability and good governance among Kenyan [CMOs].’[12] Smita and I therefore looked at the provisions of the draft regulations to explain how they helped achieve those goals.

Smita tackled the provisions relevant to the governance of CMOs and to enforcement measures and I looked at the issues of management of rights revenue and of transparency and reporting. In my presentation, I highlighted the numerous advances brought forward by the regulations but also the instances where the EU directive provided for even higher standards of transparency.

Our conclusions were that the draft regulations were a step in the right direction and that it would be for the different stakeholders to look at them and to discuss the points where they went below or beyond the EU standards and decide which departure from those standards would be best suited to the Kenyan context.

Our talks were followed by further exploration of the proposed regulations by Gad Awuonda,[13] the lawyer who drafted the regulations on behalf of KECOBO.

Then, this being a stakeholder meeting, there was a long Q&A session, handled with steely resolve by artist and media personality Ian Mbugua,[14] our master of ceremony, whose experience as a judge on the ‘Tusker Project Fame’ talent show came in handy. He kept the proceedings on track despite a barrage of questions, not all related to the regulations as such, coming from different interest groups such as artists or representatives of business interests.

Discussions surrounding CMOs, especially when they involve all interested parties, tend to be heated. In this instance, tensions were heightened by the fact that the day before the meeting KECOBO had refused to renew the licence of MCSK,[15] the Music Copyright Society of Kenya,[16] the society representing authors, composers and publishers, and by far the largest of the three collecting societies relevant to the music industry [the other two music societies being PRISK[17] and KAMP (Kenya Association of Music Producers)[18]].

Edward Sigei,[19] KECOBO’s executive director, skilfully answered or deflected those questions, especially those relating to the future of MCSK. (Since the meeting, KECOBO has confirmed the refusal to renew MCSK’s licence and has instead granted a licence to the Music Publishers Association of Kenya (MPAKE)).[20]

After the formal end to the proceedings there were some informal chats notably with the those representing the business community of users who asked me about the tricky question of tariff setting. To which I could only respond that the question was so tricky that the European directive does not offer much guidance on that this question is indeed a bone of contention between CMOs and businesses everywhere. Nevertheless, I tried to argue that although not perfect the regulations will improve the overall relationship between CMOs and businesses and that businesses should seize this opportunity to participate in the process and welcome the improvements brought forward.

Overall, I thought it was a very successful event and I am really looking forward to the final version of the regulations.

I would like to thank our hosts, the KECOBO and PRISK, especially Angela Ndambuki,[21] the CEO of PRISK, who invited us and organised our trip to, and stay in, Nairobi. Not only was it a great opportunity to take part in the process of law making and to engage in comparative analysis whilst discovering another legal system and meet various stakeholders in the Kenyan music scene. It was also a great, albeit brief, opportunity to discover a fantastic country.

The reality of academic traveling is not always as exciting as the names of the conference locations make it sound. Although the destinations often sound fantastic, we are there to work and thus spend most of our time in airports, hotels and conference rooms with, if we are lucky, some short social event to experience a bit of a place where the event is held. This time too, we did not have much time off. But Nairobi is quite unique in having wild life parks in its midst, just a short car drive away from the city centre.

So in our morning off we were able to experience both the Nairobi National Park[22] and the David Sheldrick’s Elephant Orphanage.[23] And thanks to our park guide Carlos we got lucky enough to see many of the majestic animals of those parks (lions, elephants, giraffes, buffalos, rhinos… see attached pictures). This was truly a unique experience which made me hope that I will have the opportunity to come back to Kenya, with my family, and explore the wildlife even more.

I would also like to thank Joseph Nzioki, our taxi driver/guide, who not only taxied us from and to the airport but also provided us with expert knowledge on the history, culture and business news of Kenya. It really felt like having a personal tour guide giving us inside knowledge of the intricacies of life and politics in Nairobi. Plus, as I told him, the fact that he is called Joe and is a taxi driver did bring back fond childhood memories of 1987 French international pop sensation ‘Joe le taxi’ by Vanessa Paradis,[24] below in all its YouTube/Vevo glory.

[1] Kenya Copyright Board: http://www.copyright.go.ke

[2] Our Functions – Kenya Copyright Board <http://www.copyright.go.ke/functions.html>.

[3] Dr Smita Kheria’s Edinburgh Law School profile: http://www.law.ed.ac.uk/people/smitakheria

[4] Edinburgh Law School News, ‘Academics Contribute to a Stakeholder Forum on Collective Rights Management Regulations in Kenya’ <http://www.law.ed.ac.uk/other_areas_of_interest/news/all_news/academics_contribute_to_a_stakeholder_forum_on_collective_rights_management_regulations_in_kenya>.

[5] Performers Rights Society of Kenya: http://www.prisk.or.ke/

[6] [Kenyan] Collective Rights Management Regulations: http://www.cmoregulations.or.ke

[7] Kenyan Copyright Board, ‘Draft Collective Management Regulations – 6th February 2017’ <http://www.cmoregulations.or.ke/wp-content/uploads/2017/02/CRM-Regulations.pdf>.

[8] 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 Text with EEA Relevance.

[9] 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 Text with EEA relevance, recital 9.

[10] The Collective Management of Copyright (EU Directive) Regulations 2016 (Regulations 2016/221) 2016.

[11] Ordonnance N° 2016-1823 Du 22 Décembre 2016 Portant Transposition de La Directive 2014/26/UE Du Parlement Européen et Du Conseil Du 26 Février 2014 Concernant La Gestion Collective Du Droit D’auteur et Des Droits Voisins et L’octroi de Licences Multiterritoriales de Droits Sur Des Œuvres Musicales En Vue de Leur Utilisation En Ligne Dans Le Marché Intérieur.

[12] What is the purpose of the CRM regulations? – ‘F.A.Qs – Collective Rights Management Regulations’ <http://www.cmoregulations.or.ke/index.php/f-a-qs/>.

[13] Gad Awuonda’s Linkedin profile: https://ke.linkedin.com/in/gad-awuonda-52b980a

[14] Ian Mbugua’s Twitter account: https://twitter.com/ianmbugua?lang=en

[15] Grace Kerongo, ‘MCSK’s Lack of Accountability, Main Reason for Non-Renewal of License’ The Star, 20 February 2017 <http://www.the-star.co.ke/news/2017/02/20/video-mcsks-lack-of-accountability-main-reason-for-non-renewal-of_c1509818>.

[16] Music Copyright Society of Kenya: http://www.mcsk.or.ke/

[17] PRISK’s twitter account: https://twitter.com/priskkenya

[18] KAMP’s website: http://www.kamp.or.ke/ & KAMP’s twitter account: https://twitter.com/kampkenya

[19] Edward Sigei’s twitter account: https://twitter.com/kiped721

[20] KECOBO, ‘KECOBO Approves Music Publishers Association of Kenya (MPAKE) to Collect Royalties for Authors, Composers and Publishers’ <http://www.copyright.go.ke/media-gallery/news-and-updates/323-kecobo-approves-music-publishers-association-of-kenya-mpake-to-collect-royalties-for-authors-composers-and-publishers.html>; In-house Kenya, Kenya’s Regulator Licenses New Royalties Body (29 March 2017) Music-Africa <http://musicinafrica.net/kenya%E2%80%99s-regulator-licenses-new-royalties-body>.

[21] Angela Ndambuki’s twitter profile: https://twitter.com/angelandambuki?lang=en

[22] Kenya Wildlife Service – Nairobi National Park: http://www.kws.go.ke/parks/nairobi-national-park

[23] The David Sheldrick Wildlife Trust: https://www.sheldrickwildlifetrust.org/

[24] ‘Joe le taxi’ (1987) Polydor; Author: Étienne Roda-Gil, Composer: Franck Langolff, Performer: Vanessa Paradis; Music video director: Jean-Sébastien Deligny. Music video available on the YouTube/Vevo account of Vanessa Paradis https://www.youtube.com/watch?v=Ulay2FvUEd8.