Thoughts on Kenya’s copyright scene
This month is special. On my birthday I also completed my first term as chairman of the Kenya Copyright Board, an occasion from which I draw pride, satisfaction and gratitude.
I was fought on social media by folk who thought that if I accepted the appointment, I would become a government poodle, be bribed with lots of money and cars. Here is the experience.
I never got a request for a single favour, not even for a discount on an ad, which I would have been only happy to facilitate.
I got a ride in a parastatal staff car once – I probably should pay Uber rates for it – and Sh80,000 a month, which after a series of tax haircuts just disappeared into the general pool of my relative poverty.
But I have learnt valuable lessons about our country and its government and I’ve experienced the sheer joy and satisfaction of doing something meaningful for your country.
The management of copyright in Kenya requires a lot of work and investment. The average Kenyan musician is poor and cannot live off his talent.
This state of affairs, unfortunately, will not change without a comprehensive change in the policy framework, in the legal infrastructure, training and education of artists and a new royalty management system – registration of works as well as collection and distribution of proceeds.
Today, royalties are collected on behalf of the artist by Collection Management Organisations, essentially giant co-ops, which are then supposed to ensure that each one got his rightful share.
Collection is, in some instances, very close to the merry Stone Age process of a fist and knobbed stick shakedown and distribution sometimes boils down to getting a sum and dividing it by the number of members and giving everyone an equal share, irrespective of whether your work has been consumed or not. It comes down to a figure like Sh2,000 per artist. This process is, of course, woefully inefficient and wasteful.
The answer is straightforward enough, conceptually. Digitise the register of works – which has largely been done by the regulator – and digitise and automate collection and distribution. This is work in progress.
However, and this is where I differ with many good people, the law now provides a place for those giant co-ops and there is no legal way of by-passing them.
My ideal structure is one that offers the individual artist education about his stake and interests in the industry as well as choice and opt-ins in the management of his royalties by these organisations.
One option is to turn CMOs into artists’ unions, which artists can choose to join or not join. Artists can also be offered a choice to have their money paid to CMOs for the CMOs to decide how it ought to be distributed or otherwise disposed of, as they do now. Or artists can opt to have the royalties paid into their digital wallets without any intervening agents whatsoever.
That is the ideal. The reality is that the sector is highly politicised – politicians especially from Central are drawn to popular musicians like bees to nectar – and they don’t always understand that there is a world of difference between the interests of artists and those of their organisations.
The courts are largely on the side of CMOs and never waste a chance to kick the regulator in the stomach. And the CMOs have a lot more money – the regulator is cash-strapped – and are better politicians and propagandists than the technocrats trying to run the sector.
One of the biggest regrets is that I ran out of clock before we could get justice in the disappearance of hundreds of millions of shillings belonging to artists and discovered in audit. That money should be recovered – at any cost – and restored to musicians to whom it rightfully belongs. But it will take a lot more power than the regulator has to ensure this outcome.
Fortunately, there is a lot of goodwill for musicians and their cause. They have the ear of President Kenyatta and presidential candidate Raila Odinga.
SK Macharia, the proprietor of Royal Media Services, who is absolutely digitally savvy and an all-round clever man, is very passionate about the arts and frustrated by the slow pace of reforms in that industry. And he is listened to both in the public and private sectors. And there are many like him.
Experience of my life
And the Kenya Copyright Board is one of the best-led organisations in the public sector. The integrity in the board – which never has to vote because the public interest is always obvious on every issue – the professionalism with which it is managed, fully empowered committees doing the work, not a single unnecessary sitting or retreat and business conducted efficiently and transparently and a management team that is capable and devoted, means that though the regulator is small and broke, these issues can and will be sorted out.
This has been one of the most rewarding and truly special experiences of my life.