AN ANALYSIS OF MUSIC COPYRIGHT PROTECTION IN KENYA
ABSTRACTThe purpose of carrying out this study is to analyse if the Kenya Copyright Board (KECOBO) is effectively fulfilling their mandate as outlined in the Copyright Act No. 12 of 2001 of administering and enforcing copyright as well as copyright related rights. The specific aim of the study is to examine the challenges that musicians and artists face with regard to copyright and assess whether the current legal framework on copyright in Kenya is working to curb these challenges.
This study will also aim to identify why CMO’s disagree on who is mandated in law to collect royalties and for whom. The goals of the study are to also develop recommendations based on the research findings. The scope of this research is limited to the challenges facing Kenyan musicians and artists. The primary subjects of this study are Kenyan musicians and artists. The copyright theories of fairness, personality, welfare as well as culture theory will guide in answering the research problem.
The research design is intended to be purely qualitative and will seek to understand the research problems from the perspective of musician. This design is advantageous because of its ability to provide textual descriptions of how musicians experience the research issues. The study hypothesis is that the current legal framework on copyright is not adequately curbing the challenges facing Kenyan musicians and artists which has consequently impeded the promotion of innovation in the Kenyan musical industry as is evidenced by the numerous disagreements amongst CMO’s on who is mandated by law to collect royalties on behalf of whom.
The Kenya Copyright Board (KECOBO) is a State Corporation under the office of the Attorney General and the Department of Justice. KECOBO is established pursuant to Section 3 of the Copyright Act and its functions as highlighted in Section 5 of the Act are; to direct, co-ordinate and oversee the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to copyright and other rights recognised by the Act and ensure the observance thereof; to license and supervise the activities of collective management societies as provided for under the Act; to devise promotion, introduction and training programs on copyright and related rights, to which end it may co-ordinate its work with national or international organisations concerned with the same subject matter; to organise the legislation on copyright and related rights and propose other arrangements that will ensure its constant improvement and continuing effectiveness; to enlighten and inform the public on matters relating to copyright and related rights; to maintain an effective data bank on authors and their works; and to administer all matters of copyright and related rights in Kenya as provided for under the Copyright Act and to deal with ancillary matters connected with its functions under the Act.
Despite the wide array of responsibilities bestowed upon KECOBO, Kenyan musicians still face a great deal of problems which include but are not limited to; piracy. Piracy is among the leading problems facing musicians and artists in Kenya due to the amplified and increased use of the internet, there is unauthorized sale of songs in form of ring tones or caller ring back tones. There is also wide spread copying of original works. Musicians face the problem of royalties collection because as a copyright holder, it is not materially possible for an artist to monitor all uses of their works as they cannot for instance contact every single entertainment establishment radio or television station to negotiate remuneration for the use of their works hence they use CMO’s (Collection management organization) such as Music Copyright Society of Kenya (MCSK) to collect royalties on their behalf although such organizations are often accused of mismanagement of royalties. CMO’s have also most recently been disagreeing on which of them is mandated by law to collect royalties and on whose behalf. There is also lack of awareness on copyright laws on the part of the musicians hence they do not know how to enforce their intellectual property rights. Corruption and weak enforcement mechanisms is also another challenge that KECOBO as well as CMO’s face.
STATEMENT OF PROBLEMFrom the above background, the ensuing problem however is; the implementation of copyright laws with regard to musical works is greatly affected by the challenges discussed above. The statement of the problem therefore is; whether KECOBO can implement their mandate of administering and enforcing copyright as well as copyright related rights while facing the above mentioned challenges. Can these challenges be overcome and how can this be done?STATEMENT OF OBJECTIVESThe overall aim of the study is;
To analyse if KECOBO can fulfil its mandate while facing the aforementioned challenges.
Analysing the challenges faced by musicians and artists with regard to copyright laws.
Assessing why CMO’s disagree on who is mandated by law to collect royalties and on behalf of whom.
Developing recommendations based on the findings of the research.
RESEARCH QUESTIONSThe research questions pertinent to the dissertation include;
Is KECOBO effectively implementing their mandate?
What are the challenges faced by musicians and artists with regard to copyright?
Why do CMO’s keep on disagreeing on which of them is to collect royalties and on whose behalf?
Which recommendations can be made to remedy the challenges?
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