In 2012, the Copyright Act was amended by parliament to include the following paragraph that gave equitable rights to compensation to everyone who worked in the production of a musical work.
Right to equitable remuneration for use of sound recordings and audio visual works.
30A. (1) If a sound recording is
published for commercial purposes or a
reproduction of such recording is used
directly for broadcasting or other
communication to the public, or is publicly
performed, a single equitable remuneration
for the performer and the producer of the
sound recording shall be paid by the user
through the respective collective
management organization, and the
remuneration shall be shared equally
between the producer of the sound
recording and the performer.
This, as explained in detail here, brought in Community Management Organizations i.e. MCSK (composers and authors), KAMP (producers) and PRISK (performers) as the collecting organizations for the Skiza funds instead of Premium Rate Service Providers (PRSPs) or Content Servive Providers (CSPs). There was however the question of collection of Skiza royalties on behalf on non-members which was sorted in a ground breaking judgement by Judge Mumbi Ngugi also covered here. She made the argument that there’s nothing in the law that stops the CMOs from collecting and paying non-members.
However, after the ruling a case was filed in the Malindi High Court under Constitutional Petition Number 5 of 2016 by Mercy Munee Kingoo and Lydia Nyiva Kingai. The case sought to declare Section 30A unconstitutional on the grounds that the artists have no contractual obligations with the CMOs and as such Safaricom should not pass the royalty money through them.
The judgement for the case was delivered on 3rd November 2016 and declared Section 30A unconstitutional as it limits the manner in which artist royalties are paid. It also directed Safaricom to pay all Skiza royalties from directly to CSPs.
In compliance with the earlier judgement, Safaricom in July 2016 entered into an Agreement with the CMOs to pay artists and has so far paid out over Ksh. 325 million.
Recently Kenyan Musician Eunice Njeri wrote an impassioned plea to Safaricom on Instagram highlighting the fact that while her music is popular and garners about Ksh. 30 Million a month from Skiza Tunes, her CSP does not give her a cent. As per the current Skiza royalties arrangement, the CSP gets 15% (in this case Liberty Africa) and is meant to relay some of that money to performers.
Also, the current arrangement does not recognize payment of royalties to other people who worked on making the music.
Cases like Eunice’s will continue to happen as long as Section 30A remains struck down. Artists and CMOs need to go back to court to seek the reinstatement of this important section.
Musician Dan Aceda had this to say about the latest judgement, “It is my opinion that if that judgment stands it means section 30A of copyright act is struck down. This is the section that recognises a performers rights to earn from their work. CSPs are effectively burning the house down. Look if I wrote for you and you sang and we got cash from your mum. I’m an author, your mum is producer and you are a performer. Earlier judgment forced earnings to be shared by all involved in production of content. By striking this down performers will now not earn royalties from anywhere. No radio, no TV, no nothing. The money will go to the producer. So in my example above you will now earn 0. The roles are really simple in this thing;
- Safcom/Telco – infrastructure
- CSP – aggregator
- CMO – Rights management
- Artiste – content
If everybody plays their role, everybody makes money but what we have seen is that CSPs are buying artistes e.g. what happened to Eunice. So by deleting CMOs from the chain they can now ignore everyone else who worked on Eunice’s music and flout their rights”.