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.