How Kenya robs its artists

Elani

From left: Elani band members Muthoni Kunga, Brian Chweya and Wambui Ngige.


Photo credit: Courtesy

In January 2016, Afro-pop band Elani broke their year-long silence with a press conference that attracted national attention. Despite dominating playlists and music programming with hits such as KooKoo and Milele, they had received a total of Ksh31,000 in royalty payments from the Music Copyright Society of Kenya (MCSK) - the country’s oldest and largest Collective Management Organization (CMO).

Elani called out the 38-year-old CMO for lack of transparency and accountability.  They claimed that funds meant for artists were being siphoned by a few individuals.

“We have been silent for a long time. After a successful year and several releases we realised that a loophole exists in the industry.  A problem affecting musicians must be discussed.” 

Demanding accountability 

“The structures within the music industry in Kenya have failed the musician. Those entrusted to distribute the money which is generated by our hard work have failed us. The organisations whose sole purpose is to manage and distribute the funds that our blood, sweat and tears have created have failed us. We spent all we had to make the best music we could. We sincerely deserve to get our due,” they asserted.

Elani were by no means the first Kenyan artists to demand accountability when it comes to the collection and distribution of royalties, only the latest in a long line. Poxi Presha is a pioneering rapper who emerged two decades earlier and popularised the phrase ‘But do I say’ with his tune Otonglo Time. Poxi became known for his activism after he made it his mission to fix a deeply flawed music industry.

 "I took a break from active music when I realised that despite the massive airplay my songs were enjoying, I was not profiting from them. I realised that the true beneficiaries were a few people who deny us our royalties," Poxi stated two years before his death in 2005. The Mombasa-born rapper had formed a company, Talent Works and  Rights Enforcement Limited, and spent countless nights in police cells after storming music shops over piracy. 

Royalties 

Five years after Elani’s presser kicked off a storm that saw think-pieces penned, artists invited to TV panels and  MCSK claim innocence, are Kenyan artists getting what they deserve? The answer is no, not even close.

 As a matter of fact, royalties payable to MCSK members in the 2020 financial year (Ksh105.5M) were lower than in 2016 (Ksh109.8 million).

MCSK is by far the largest of three CMOs licensed to collect royalties on behalf of rights holders in Kenya. The others are the Kenya Association of Music Producers and the Performers Rights Society of Kenya (PRISK).

 Its mandate is to collect royalties in public performance and broadcasting, on behalf of its members and to distribute the same to its members, based on the professional rules of Copyright Collective Management Organizations.

Digging to find the root of the problem uncovers entrenched dysfunction and systemic flaws designed to benefit administrators at the expense of artists, and a realization that the problematic web begins with CMOs but stretches beyond them.

For many Kenyans, the mention of MCSK brings to mind harassment of small business owners - particularly music and movie shops, clothing stores, restaurants and bars among other establishments. 

This is because MCSK representatives accompanied by police officers regularly make the rounds in busy centres around the country, checking if businesses have the licenses required to play music in their establishments. Those who don’t are often shaken down, and many businesses part with bribes to keep the authorities off their backs.

It means that a sizable chunk of what MCSK collects is spent on travel arrangements for their enforcement officials complete with armed security as back-up.

The Kenya Copyright Board (KECOBO) is the state corporation with the mandate of enforcing and administering copyright and related rights matters, including licensing and supervising the activities of CMOs.  According to CEO Edward Sigei, the enforcement systems by CMOs including MCSK are outdated and expensive, and the organizations are treated as cash cows by their board members and directors.

He cites board expenses as one of the biggest causes for their dysfunction.

“The audit we did found that in one CMO, they had 52 meetings in a year,” Sigei revealed - offering insight into how board expenses run into tens of millions. 

Legal battles

MCSK was yet to respond to the claims by the time of going to press.

KECOBO has been locked in legal battles with MCSK, KAMP and PRISK for years. MCSK has lost its license at least three times in the last five years for not complying with regulatory requirements.

Most recently, in August, KECOBO announced that it had revoked the licenses of the three CMOs for failure to comply with the licensing provisions, citing  "breach of administrative cost limit and diversion of royalties into an undeclared account whose operations are unmonitored.".

MCSK, KAMP and PRISK moved to the High Court and secured a reprieve as Justice Weldon Korir set aside KECOBO’s decision pending the hearing of the application by the CMOs.

The unending court battles have established legal fees one of MCSK’s biggest expenses over the years, rivaling rent and board expenses.

Where does the media fit into this mess of a jigsaw puzzle?

While MCSK and CMOs count broadcast income among their revenue streams, broadcasters continue to have the upper hand in negotiations, and engage CMOs on their own terms.

 CMOs have long demanded 10% of gross advertising revenues by broadcasters but this remains a pipe dream. The proposals have been shot down by media giants, aided by the dysfunction at CMOs which enables broadcasters to pay bare minimum flat annual rates.

 Broadcasters also fail to submit logs of songs played as required, meaning there isn’t accurate data to inform which artists should be paid the most. This explains why massive airplay doesn’t necessarily translate to massive royalty checks in Kenya.

It also means that artists don’t get to benefit from culture-shaping waves such as Gengetone. Gengetone was born in 2018, when Ethic released Lamba Lolo and countless young artists then popped up driving a resurgence of Kenyan music. Ironically, royalties payable to MCSK members in 2018 (Ksh43.2M) were at their lowest in five years.

More Kenyan music is being played on Kenyan media, and genres including Kenyan Drill, RnB and Afro-Pop are growing fast. All the young artists driving the industry forward will likely not be rewarded as they should in royalty payments  - despite being all the rage on TV, radio, social media and events.

Many artists are also ignorant of the need to take interest in the management of their works by CMOs. For instance,  several Gengetone artists with hits under their belt told this writer in the course of research for this story that they aren’t registered members of MCSK or any other CMO.

They associate it with theft and corruption, and don’t even consider royalties as part of their expected income. They make money from performances, streaming platforms and, if they’re lucky, endorsements.

KECOBO’s forensic audit of CMOs also found that thousands of members of MCSK, for instance, aren’t even artists but actually ghost members - individuals registered with the help of figures looking to secure their grip on power within the organization. They include youth drawn from various groups who attend MCSK AGMs and vote in officials, while many artists barely understand that they can influence the operations of CMOs by actively participating in their activities.

At the onset of the pandemic in 2020, artists were among the most affected as gatherings were banned and entertainment joints closed. President Uhuru Kenyatta announced measures intended to cushion them, including directing the creation of a centralized rights management system. He stated that the changes were meant to drive up annual royalty payments to over Ksh2 Billion.

A self-licensing and payment system with a dedicated web platform and mobile USSD code has since been launched, as well as the National Rights Registry which allows any artist to register their works online for free.

Stakeholders hope the technology will help seal loopholes that allow artists’ cash to slip through the cracks. Its uptake has been growing, with over 20,000 works registered. Awareness, however, remains low particularly among artists.

For Kenyan artists to receive royalty payments at par with the rest of the world, concerted efforts by stakeholders are needed - to end the bickering and rethink structures that define the industry.

This story was developed as part of the inaugural Data Storytelling Fellowship at Baraza Media Lab in Nairobi, in partnership with Fringe Graph.

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