Friday, February 22, 2013

Warm Houses

For the first set of the year - a warm, mid-tempo, somewhat celebratory compilation of new/old Afro-House bangers and some nice fusion tracks from around and about the Motherland. Highlights include:

Fena back with Dutch, yet another hit featuring Kagwe Mungai and Toshi // New material off The Very Best's latest album MTMTMK (which cheekily stands for More To Malawi Than Madonna's Kids) // Fuse ODG's latest azonto tune //P Square and JJC repping for the West // Nonini and Calvo Mistari with the new trend of fusing genge and house elements.

Download HERE


Tuesday, January 22, 2013

From Studio Booth To DJ Booth - Part 3: Required Viewing


I wish to conclude my end of the copyright debate with two documentaries highlighting the current state of copyright law in more developed areas of the world and how it is turning into a menace rather than a well intentioned cause to develop wider society and at the same time benefit the creators of intellectual property.

 RiP: A Remix Manifesto features the popular mashup artist/DJ Girl Talk as a case study of the state of copyright and the madness that has infiltrated the music licensing industry around the world, while at the same time building its case for "The Remixer's Manifesto" - four key talking points that the documentary's creators try to justify.
Everything Is A Remix explores the concepts of creativity, originality, intellectual property and copyright on a much wider scale but in four very brief parts that are nonetheless very informative.  
There you go. Enjoy. Discuss. Comment.

Tuesday, January 15, 2013

From Studio Booth to DJ Booth - Part 2: Questions for CMOs

*Click Here For Part 1*

 In this long overdue second part of this blog post, I sent  the message below to MCSK and KAMP for their input. The  post will be updated if/when they exercise their right of reply. Anyone else can weigh in on the comments section as soon as now. Here's the message below:

Hallo there,  MCSK, KAMP and PRiSK

I have some inquiries to do with your music performance licensing regime with special focus on DJs for a blog article I am working on. They are laid out in seven parts as follows:

1. Sufficient Authorization
Currently, the kind of relationship between artistes and DJs in Kenya is that which the DJ is an integral, almost indispensable part of the music distribution and publishing system. We are well aware that artistes periodically send DJs copies of their work for the sole purpose of being played during the DJs' performances in public at clubs, concerts, public gathering and even for broadcasting in radio shows, podcasts and other media. Does this practice count as sufficient authorization from the artistes to use those works in public performances according to the Copyright Act? If so, why would DJs who perform using music supplied by the  copyright owners for the purpose of public performance need to obtain music performance licenses? Is this reality reflected in the rate of the fees imposed for obtaining a license for music performance?

2. Music Videos
In my opinion, a number of complications arise when analyzing the copyright implications for music videos according to the Copyright Act. Reading the interpretation clause (Section 2) of the Act, the closest description to a music video is an “audio-visual work” which is described as follows:

“audio-visual work” means a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogrames but does not include a broadcast;”

In light of this, which CMO is responsible for monitoring the performance of audio-visual works in public settings? This is an important question since DJing has evolved  and the sub-sector of the Video Deejay (VJ) who performs music videos as opposed to the original musical work.

The second complication arises in the language of that particular section of the Act. Audio-visual works are interpreted as being fixated in a physical medium (videotapes, CDs, DVDs etc.) Does this imply that music videos that exist “in the cloud” on sites such as YouTube do not fall under this category? If so, does this mean that if we apply strict interpretation of the Copyright Act and restrict audio-visual works to those confined in physical media, then a VJ who performs using only videos ripped from YouTube or other video-sharing sites without a license of any sort is not infringing copyright?

3. Royalties Distribution
Royalties allocation is normally a straightforward affair in scenarios where musical works get airplay, are downloaded in their original form or as ringback tones etc etc and the related data is well-documented. However, I am more interested in scenarios where distribution of royalties can get complicated. Take for example distributing the royalties from venue owners of club/discos or concerts - Of course, the ideal situation is whereby only the copyright owners whose works are used in the performances should benefit. Without a system of determining which specific works are used in performances at such venues and how many plays they get in the period for which royalties were collected means that those whose works are not used stand to gain unfairly. How do you work around that challenge to ensure that deserving copyright owners get their dues?

4. Open Data?
The resources available to the public such as forms, rates for various types of licenses and elaborate FAQs sections are much appreciated. However, I would also like to imagine that there is still a wealth of data in your hands that can be made available. For instance, it would be interesting to make the raw data of the royalty earnings of your members/members of other collaborating CMOs in a given period. I believe these types of data sets can be beneficial to your members in terms of promotion, opening up new opportunities and even expose those who are still up and coming in the industry.  What's your take on this?

5. Tainted Copyright
Kenyan producers and artistes do not shy away from infringing copyright themselves in the process of creation of their musical works in varying degrees that range from light sampling to practically lifting an already existing musical work in its entirety and passing it off as an original work instead of a derivative work. You do not have to search very far for examples: I seriously doubt that P. Unit cleared with Island Records/Mango Records to use the popular 90s Bam Bam riddim for their new track You Guy (That Dendai). The instrumental portion of Rabbit's critically acclaimed single Swahili Shakespeare was entirely lifted from Sad Romance by Ji PyeongKyeon without even as much as an acknowledgment of the original work. Black Duo's Rap Kwa M.I.C. -  considered a local hip hop classic by all standards – heavily plucks its instrumental content from Chaos by Talib Kweli, Hi-Tek and Bahamadia off the 1999 compilation album Soundbombing II.

Anyone is therefore justified in questioning the utility of dishing out royalties for such works with tainted copyright. If creators and eventual owners of copyrighted works do not adhere to restrictions against infringement on other works, why should they benefit from the levels of protection and licensing their works are currently enjoying? Where do CMOs stand in this ironic situation?

6. Venue Owners/Event Owners vs. DJs
I believe the mischief being guarded against when imposing music performance licenses is to ensure the party responsible for or gaining from the public setting in which music is performed gives copyright owners of the music used their due. The DJ (if he or she is not the event/venue owner at the same time) merely facilitates the performance of the  musical works. The relationship between the DJ and the venue/event owner resembles that of the employee and employer in tortuous claims. The liability for failing to obtain a license should therefore lie squarely on the event/venue owner, in my view, more so since they are those who stand to gain more as opposed to the DJ. This should make practical sense across the board with very few exceptions. Why then have you adopted the policy of falling back on the DJ when the event/venue owner fails to obtain a license? Doesn't imposing some monetary penalty on the event/venue owner solve that problem instead?

7. Flat Rate for Licenses
Is flat rating the fees for obtaining music performance licenses for DJs reasonable given that this sector of the music industry is not balanced, with a huge gap between the top-earners and the up and coming DJs in terms of income generation? What are the complications surrounding alternatives such as a tabulated fee rate system where one pays according to what one earns?

I am very interested in getting your point of view on these issues.



Sunday, November 18, 2012

From Studio Booth to DJ Booth – Part I: DJs Scratching Their Heads over Music Licensing

The extremely heated debate as to whether Kenyan DJs should pay for public performance licenses when performing in public has been raging for a couple of weeks now – local artistes, local DJs, the organizations mandated to issue the licenses and interested stakeholders have been at it, each voicing their interests everywhere from social media to radio and print media. I will now attempt to add some momentum to this discussion with a few pointers.

The legal basis of music performance licensing is well explained by misternv on the diasporadical blog so there is no need to be repetitive. Basically, when a song/musical work is published, different groups have some claim to copyright – the composers (the folks who come up with the various elements that make up the song in terms of beat, stems etc.), the producers (the folks who do the final mastering and recording) and the performers.

 A lot of financial input is involved in the production and publishing of these musical works, therefore these groups have to be compensated for their efforts. This is mainly achieved by issuing licenses to those who intend to use their musical works. To cut down on the hustle and bustle of tracking down each and every copyright owner for authorization to use their works, the right to issue these licenses lies in the hands of these non-profit (collective management) organizations: MCSK (on behalf of composers) and KAMP (on behalf of producers). The fees from licensing then trickles down as royalties to the various copyright owners with PRiSK having the responsibility of making sure that performers are also part of the equation.

In applying the strict letter of the law, DJs as performers of copyrighted material need authorization for the public performance of the musical works involved. In order to obtain such a license, it has emerged that DJs will need to pay the Collective Management Organizations (CMOs) a cumulative fee of Kshs. 31,500.That is fundamentally the state of the law as it is. However, the state of the law as it ought to be could be another matter altogether. The state of the music industry at the moment stands out as an unavoidable challenge to the application and implementation of some of legislation touching on music licensing.

As regards public performance licenses, the long-standing industry custom has been that in clubs/discos/events/concerts involving performance of music, the onus is on club/disco proprietor or the organizer of the event or concert to pay the relevant fees without the involvement of the DJ. One therefore wonders if the focus should be on the organizer/proprietor instead of the DJ if no license has been taken. The organizer or club/disco proprietor usually gains the most from the public performance therefore there is more to gain from ensuring that owners or organizers of clubs/discos/events/concerts obtain the relevant license than ensuring that DJs play an annual flat fee.

On the flipside, the argument for DJs having to pay for public performance licenses is sound especially for well-placed professional DJs who gain financially through playing in exclusive, up-market clubs, public events and concerts. The problem probably lies in the rate of the fees – the majority of upcoming/small scale DJs who play at small establishments for a few thousand shillings do not see Kshs. 31,500 as a reasonable rate for licensing fees. I’m aware that tabulating/calculating fees according to income from public performance could prove immensely challenging for the CMOs but the flat fee must be balanced.

In addition, a vast number of professional DJs receive tracks from musical artistes solely for the purpose of having them play those tracks in clubs, events, radio/TV shows etc – they are called Promo CDs or Promo packs in industryspeak.  In my view, this constitutes sufficient authorization to perform the musical work. The question is whether a DJ who plays music solely from these “promo packs” needs to take a public performance license. This situation also raises the question as to why the CMOs prefer a flat fee for public performance licenses instead of a regime based on actual performance of a musical work.  A flat fee means that even a registered artiste whose work is never played even once in a club/event stands to gain. It also means that the fees are also charged on behalf of the copyright owners who want their work performed by DJs only for promotional purposes and not financial gain.

The CMOs have also intimated that DJs need to obtain reproduction licenses to cater for the practice of copying of musical works from their own private collections of legally obtained CDs and vinyl records to storage devices or through systems such as centralized data banks, music pools or just plain old ripping music videos off YouTube for the purpose of public performance. Other countries including the United States find it difficult to grant a monopoly in a single entity to issue blanket reproduction licenses and leave this to the individual copyright owners.

This brings in the issue of distribution of music by the various copyright owners vis a vis the nature of the DJing these days. Distribution of local music is wanting – partly caused by the fact that the average Kenyan consumer is not used to legally purchasing music. The Camp Mulla debut album proved to be a very elusive item on the first two weeks of its release, for example. Not all local artistes can claim to have a proper release of a single suited for the DJ (in high quality lossless formats such as FLAC or WMA with extended versions, instrumentals and acapella versions). I suspect that there are artistes who consider posting their music on YouTube and handing copies to TV/radio stations a release. This means that the DJ will resort to the above mentioned means of obtaining the music.

In light of the prevailing developments, let’s now see what would be a suitable practice to follow if you are a professional DJ dealing with musical works:

1. Production
If you are a DJ involved in the composition of a song (DJ Kaytrixx in Bamzigi’s Bachette for example?) and have been credited for the song as either a composer/co-composer or performer of the work, make sure you are registered with the relevant CMO to get your share of the royalties.

2. Remixes
Remixes are considered derivative works (those based on an original work) and thus needs authorization of the copyright owners. If they send you the track to remix, that should constitute sufficient authorization. Make sure you and the copyright owners are clear on how you want to deal with the resulting copyright in the remix. You could opt for a one-off flat fee or also claim your share of the royalties accruing from the remix as co-composer of the work or any arrangement that suits you.

3. Mixtapes, Promo Video Mixes and Bootleg Remixes/Mashups
If we were to apply the law strictly, you would need the blessing of each and every copyright owner of each and every track to release these. However, promotional compilations, mixtapes and videos you release for free could fall within the Fair Use category (see below). Bootleg remixes or mashups could also fall within Fair Use.

4. Playing in Clubs, Events, Concerts etc.
Wherever you perform live, make sure the proprietor/organizer has the relevant license. If they are not keen on obtaining one, you could factor in the cost of obtaining your public performance into your overall fee… Good luck with that though…

5. Fair Use
Essentially, you need clearance from copyright owners when recording and releasing your mixes or mashups. However you could rely on the doctrine of Fair Use to justify such use. Fair Use is a defense to copyright infringement designed to permit limited use of copyrighted material without permission to encourage innovation, parody, commentary, criticism, research and such positive results. Determining whether your mix, remix or mashup qualifies as fair use several factors are considered:

If the use is of a commercial nature: If your purpose was to use the works to gain commercially (selling mixtapes or remixes) you should not fall back on this defense
Availability of the original song: It is hard to prove fair use if you use an unreleased track without authorization to reserve the owners right to decide whether to release the song
How much of the original song was used (in the case of remixes/mashups)?:  the less, the better

Has your remix diminished the value of the original song (in the case of remixes/mashups)?: in terms of preference of the original over the remix,  and other licensing opportunities such as preference of your remix for use in TV or radio advertisements over the original could hurt the original song’s copyright owners

Watch out for Part II where I ask MCSK and the other CMOs some nagging questions.

Tuesday, October 16, 2012

Losing You

A lot of randomness here hence the title - basic reaching out all over with some long drawn transitions.

Some of the highlights: Solange Knowles' new single Losing You that came out recently with an equally nice video (check it out here) // Musik Maestro's first two singles including the banger House Party // JR's long lost hit Show Dem // Just A Band's new (and different) single off their upcoming album Sorry For the Delay - cop it here // A lil bit of this and that from Classixx, Tupac, Chief Boima, Popcaan etc. to spice things up.

Download HERE

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