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