It was bemusing to read on Kenya ICT consumers mailing list a joke setting where a man is arrested for singing a love song to his wife in their car while he had not paid shillings 3,000 to the Music Copyright Society of Kenya – infringing copyright on the local musician whom sung the song. If it were true, would you thank an omnipresent MCSK watchful eyes and attentive ears protecting local artistes works? Or curse them for a ruinous intrusiveness into the couples' love life?
Did you also know that "Happy Birthday" is copyrighted? Watch out next time your kids have a birthday party - you might pay dearly. Jessica Hill published and copyrighted Happy Birthday in 1935. While the copyright should have expired in 1991, copyright has been extended repeatedly over the last quarter of the twentieth century and the copyright for Happy Birthday is now not due to expire until at least 2030, states www.UnhappyBirthday.com and Singing Happy Birthday in Public Is Copyright Infringement
But that was two days ago, 30 November, 2011 and the amusement quite short-lived.
How it all begun:
Charles was having a haircut in Nairobi last Saturday at 5 pm. Two gentlemen from MCSK walks in to the salon and demand to have license for the TV. Please note, the salon did not have any music system installed just a television set. The salon owner had never heard of such fees and tried to explain as such. MCSK agents then tried to remove the TV set from the salon compelling Charles intervention in a bid to try to understand under what, constitutional, law gave MCSK powers to walk into a private business premises demand a license and then enforce the concept of collecting fees by removing the TV from a business owner?
He later took the trouble to visit MCSK offices to better understand but the explanation given left even more confused....when the music is played at a restaurant through TV or Radio or DVD one must pay for the right to harness artistes creativity to earn money for yourself.
MCSK agents are scouring the country on foot and by car, ever on the lookout for new bars and restaurants or salons that aren’t paying for their music that they do not want to listen to begin with. Harassing establishments that have installed TV sets for sports and other programs and not music.
"Thanks Charles for raising it." Waundo Siganga said, “Sometime early this year I chanced into the MCSK offices in Kakamega and found them stacked with a cache of impounded TVs. Most of them were taken from football kibandas where the owners had already paid content fees through Multichoice. can these guys not be stopped? It appears that arguing with these guys when they arrive is a waste of time.”
Copyright Act Unconstitutional?
On Inspectors Part V- Inspection Section 39(1) on the Copyright Act states:- “The [Kenya Copyright] Board shall, for the purposes of enforcing the provisions of this Act, appoint such number of inspectors as the Board considers appropriate and shall issue to them, in writing or in such form as may be prescribed, certificates of authority to act as such inspectors.”
Section 40 of the Act Entry into premises reads:- “Subject to the provisions of this section, an inspector may, at any reasonable time and on production of his certificate of authority, enter any premises, ship, aircraft or vehicle for the purpose of ascertaining whether there is or has been, on or in connexion with such premises, ship, aircraft or vehicle any contravention of this Act.”
Constitutional Bill of Rights in force on upon promulgation of the Constitution of Kenya in August 2010 provides under Privacy and Warrantless Searches and Seizures, Article 31 states:-
Every person has the right to privacy, which includes the right not to have—Inspectors without a court order/warrant, confiscating private property, using unconstitutional, Copyright Act self-granted powers, representing an unlicensed Collecting Society(MCSK license expired in October, 2011) are, in my view, a clear illustration of impunity in enforced of the rule of law. The police need first obtain court orders before entering, searching, and seizing private property, it begs answer how the Copyright Act can grant Kenya Copyright Board such unconstitutional powers – to use public resources in protecting private benefit copyrights?
(a) their person, home or property searched;
(b) their possessions seized;
(c) information relating to their family or private affairs
unnecessarily required or revealed; or
(d) the privacy of their communications infringed.
Booming Local IP Industry Rewarding Creators?
Make no mistake, content creators must be rewarded for their works. But do collecting societies - likes of MCSK, really benefit local music creators or do they “sell” a noble cause to the public which once “sold” gets corrupted ending up benefiting only unto themselves?
Media reports Kenya Copyright Board accusing MCSK of spending more than legal 30 per cent of its revenues on its own operations. MCSK’s expenses stood at Sh137 million in the year to June 2010 against revenues of Sh185 million, leaving it with a surplus of Sh48 million or 25 per cent of its collections, which are supposed to go to musicians. MCSK’s accountants confirmed that MCSK has not managed to keep within this limit as the total expenditure in the year 2009/2010 was 76.4 per cent of the total revenue collected.
Top artistes earned a maximum of Sh100,000 per month in royalties which is very little considering the hosts of sources MCSK collects on their behalf and compared with Sh 150,000 such artistes easily made performing per gig, regardless of how short it might be. Furthermore, it morally unacceptable for MCSK to spend over 3 quarters of the total revenue collected on oneself leaving a paltry quarter to distribute to the artistes.
The scenario is no different globally. Its big business among Big Label music companies and movie promotion companies. They front an innocent “reward innovation” façade behind which they make lots of money, but for themselves.
Complicated further by corporations employing the real innovators whom pay peanuts compared to the market value of their innovations. Such include software development companies where employed programmers -the real innovators-whose creativity ends up claimed by the employer.
Dispelling the "Intellectual Property" Myths
One of the most common misunderstandings regarding intellectual property rights, particularly copyright, is that the actual creators are the main beneficiaries of the grant. In reality, it is the large companies that employ creators and then strip them of their copyright through contracts who actually benefit from the grant society intended as a reward for authors. This important misunderstanding is no accident. Misleading "romantic notions of authorship" are systematically spun by the companies who stand in the shoes of creators to justify the generous monopoly right rewarded to them.
Another major myth regarding "intellectual property" protection is that it is the same as more traditional forms of property such as personal property or real estate. But this conflation of intellectual property is grossly misleading and harmful. Copying another's intellectual creation does not end the owner's right to make use of the original. Intellectual property rights are created only as a means to encourage further creativity for the ultimate benefit of all society, while more traditional forms of property rights are designed to protect the personal and private interests of their owners. This crucial distinction can be seen when considering that one's house is not intended to pass into the public domain at some time; nor does anyone have a fair use right to borrow another's car. Intellectual property is intended to have ownership "holes", to be imperfect in its control, while real or personal property are more absolute in the their grants to owners.
Equating these very different forms of property rights together leads to the inevitable restriction of the public's rights giving way to more absolute property rights for large entertainment companies. Those wishing to maximize copyrights often merge the differing types of property together, appealing to society's natural affection for traditional property rights in an effort to confuse and extend that affection to a different concept, writes ImagineLaw.com
Then today, courtesy of NCSG Internet policy list, received yet another email that read, “I noticed that the Stop Online Piracy Act (or SOPA) makes it a felony to upload a video of someone singing a copyrighted song with up to 5 years in prison. Dr. Conrad Murry who was convicted of killing Michael Jackson for manslaughter was only facing a 4 year maximum sentence. So it's a bigger crime to sing one of Michael Jackson's songs than it is to kill him. Think about it.”
Leaves one wondering what the Kenya Copyright Board would be doing to protected local content online from predators? Is the tax-funded public Board protecting foreign or local Intellectual Property interests? Are their energies focussed mostly on domestic protection while shying away from 'complicated' www? One hopes that they do not operate along the Gikuyu proverb that says, ruui runagira haria hahuthu. (the river escapes through the ground that is soft) wishing away the challenges associated with local content online theft?
Twelve months ago a leading Kenyan musician narrated their pains at releasing a song only to find the entire album uploaded online sometimes being offered for free or as a value-add gift. A far cry from the impression given by developed countries' IP Industry how Africans are content pirates. What mechanisms exist to arrest and prosecute African content pirates abroad? Which includes software and local mobile applications innovations, among others.
Let's wake up to the reality that copyright extremists quietly executed their evil plans to control the world. If anything, last week's Kenya ICT Consumers mailing list experience much domesticate and illustrate the greatest global Intellectual Property assets and warfare threatening to break the core of the internet. The Internet is threatened by old, dying empires putting up their last struggle to change things back to the way back to they it used to be, said Ian Peter at past IGF.
Catharsis:
Challenging the old copyright construct are Open Content Licensing models, such as, Free music from Jamendo (boasting over 336,249 music tracks) free to download and/or stream and grants users free unlimited legal sharing. Providing artists a platform to interact with their fans, distribution tools, powerful statistics and new ways of making money with free music!
Magnatune offering thousands of free music albums for download and generates money from voluntary membership fees or ThisIsOpenMusic! launched in November 2008 - an open source music label run by musicians operating from Brighton in the UK.
“We don’t believe in the conventional record label. Our objective is to release great music and sound projects from around the world, in a free, share-friendly and re-distributable manner. We encourage you to redistribute individual tracks or whole releases via sharing links, Peer-to-Peer networks, MP3 Blogs and any other form you see fit, as long as you respect the rights of the respective Artists and follow the rules of the Creative Commons Sharing License,” states website.
MythTV - a free and open source entertainment application turns a computer with the necessary hardware into a network streaming digital video recorder, a digital multimedia entertainment system or home theatre personal computer. It can be considered as a free and open source alternative to that runs on various operating systems, primarily Linux/Mac/FreeBSD. Not forgetting countless free videos available at YouTube.com and Vimeo.com
Notwithstanding the above, it would be very interesting to note reactions of Music Copyright Society of Kenya inspectors upon visiting commercial establishments installed with elaborate audio video systems whom refuse to pay MCSK license fees simply because they only streamed/played downloaded music and video released under Creative Commons content licenses.
We thank Charles for igniting an educating discussion on a perplexing copyright enforcement Kenya route. For highlighting plausible violations of Constitutional Bill of Rights, impunity fuelling an unlicensed entity to trespass, extort and confiscate private property from unsuspecting citizens and for screaming at possibly illegal uses of public taxes/resources to protect private copyright "IP" property.
As private interests continue chipping away public interest concerns, harsher economic times biting harder, an increasing number of Intellectual Property lawyers aligning themselves to the “buttered side of bread”, it rekindles hope to witness an individual going out of his way to protect and catalyse entertainment rights of others, provoked by harassment of his barber-friend.
Very interesting and educate Alex. Keep the ball rolling.
ReplyDeleteHappy that you found it worthwhile and said so!
ReplyDeleteAll-powerful Copyright Act has been (mis)used to legitimize invading any person (offices, businesses, schools, homes, etc) for whatever reasons and confiscate their equipment guised as enforcing IP rights protection. As if copyrights are above *all* other individual rights protected by the Constitution.
Contradicting the law's intended purpose as cited report shows that less than a quarter of the copyright enforcement monies end up with local content creators.
Delighted Kenyans(rights holders) imposed Constitution on their power holders(duty bearers) in August 2010!
This is very informative. I also like the humour employed. MSK is a bunch of wolves in sheep clothing! Poor local musicians.. They are suffering while everyone is enjoying their free or almost free music. There is so much more to say...Thank you for this blog, it's really opened my eyes and mind.
ReplyDeleteI have just came across a blog: Kenya Music Industry Scam how mcsk officials trick musicians Could it get worse for local musicians? And we, the people, harassed by MCSK?
ReplyDelete