The creative industry in Kenya has been riddled with controversies, legal battles, and frustrations over the years, particularly surrounding the collection and distribution of royalties. However, a recent ruling by the High Court has brought some much-needed clarity and relief to the sector. On 15th October 2024, Justice Joe M. Omido, in Civil Appeal No. E1035 of 2024 (KECOBO vs. KAMP & others), vacated stay orders that had been issued against the judgment of the Copyright Tribunal. This move annulled the controversial license granted by the Kenya Copyright Board (KECOBO) to the Performing and Audio Visual Rights Society of Kenya (PAVRISK), a move lauded by KAMP (Kenya Association of Music Producers) and other stakeholders in the creative industry.
A Tale of Material Non-Disclosure
In his ruling, Justice Omido highlighted the Kenya Copyright Board’s (KECOBO) failure to disclose critical information when seeking stay orders. The omission was particularly glaring because of the conflicting orders in HCCOMPET No. E014 of 2024 (MCSK vs. KECOBO and others), which KECOBO failed to mention. This deliberate lack of transparency, especially from a regulatory body charged with overseeing collective management organizations (CMOs), raised concerns about impartiality and transparency.
KAMP welcomed the ruling, with Chairperson Angela Ndambuki condemning KECOBO’s actions, describing them as a clear display of favoritism and bias. She expressed disappointment, stating, “We are deeply saddened by KECOBO’s continued display of favoritism and failure to act impartially as the regulator of Kenya’s creative industry.” According to Ndambuki, the unlawful actions of KECOBO have resulted in numerous legal disputes, which in turn have eroded trust in the copyright system and undermined the livelihoods of rights holders.
The Impact on the Creative Industry
The annulment of PAVRISK’s license is more than just a victory for KAMP and its members. It symbolizes a win for the entire Kenyan creative sector, which has been struggling with what many perceive as KECOBO’s increasing impartiality. According to KAMP, the ongoing legal battles, fueled by KECOBO’s malpractices, have taken a significant toll on the collection and distribution of royalties.
The royalty system is the backbone of the creative industry. Musicians, producers, performers, and other rights holders rely on royalties to sustain their careers and livelihoods. However, the continued mismanagement of the collective licensing process has plunged many artists into financial uncertainty. Angela Ndambuki highlighted that KAMP, alongside other CMOs, has had to pursue multiple legal avenues to protect the rights of its members.
“With the latest ruling upholding the Copyright Tribunal’s earlier determination, we hope that KECOBO will now cease its unlawful practices and faithfully abide by the law,” Ndambuki stated, urging the regulatory body to restore fairness and integrity to the industry.
KECOBO’s Actions Under Scrutiny
The recent ruling is not the first time KECOBO’s actions have come under scrutiny. The Copyright Tribunal, in COPTA/E002/2024, had previously rendered its judgment, directing KECOBO to issue provisional licenses to all CMOs. However, KECOBO’s reluctance to comply with this decision has been a point of contention within the industry.
KAMP’s CEO Maurice Okoth voiced his frustration, stating, “KECOBO continues to delay and obstruct the process, further compounding the woes of the creative industry.” Okoth pointed out that KECOBO’s actions have not only delayed the licensing process but have also exacerbated the financial difficulties faced by artists, producers, and performers who rely on royalties for their income.
Adding to these concerns, KAMP revealed that KECOBO had misled the organization by suggesting that they withdraw all court matters in favor of out-of-court settlements. In a letter dated 24th September 2024, KECOBO had proposed discussions aimed at unraveling the stalemate within the collective management industry. However, KAMP later submitted this letter as evidence in JR No. E138 of 2024 (Rep vs. KECOBO and others), claiming that KECOBO had been acting in bad faith.
“This letter has been submitted in court as evidence of KECOBO’s insincere behavior, misleading parties into entering negotiations for out-of-court settlement while still engaging in unlawful licensing of CMOs,” Okoth stated. Such actions, according to KAMP, illustrate KECOBO’s deep-seated bias and lack of transparency, further damaging its credibility as a regulator.
The Need for Regulatory Reform
The recent developments in the copyright sector underscore the urgent need for regulatory reform in Kenya’s creative industry. KAMP and other CMOs have long argued that KECOBO’s licensing processes have been marred by favoritism and unlawful practices. These accusations are not baseless, as seen in the annulment of the PAVRISK license and the subsequent court rulings.
KAMP has called on KECOBO to immediately comply with the rulings of the Copyright Tribunal and to act with integrity in the discharge of its regulatory functions. Failure to do so, KAMP warns, will lead to further legal action. According to KAMP, the future of Kenya’s creative industry depends on a fair and transparent licensing system that protects the rights of all stakeholders.
The creative industry is a vital part of Kenya’s economy. Musicians, producers, and performers not only entertain the public but also contribute significantly to the country’s cultural and economic landscape. However, continued mismanagement by the regulatory body threatens to undermine this industry. As KAMP’s Chairperson Angela Ndambuki emphasized, “The continuous legal battles have substantially affected the collection and distribution of royalties, plunging artists, producers, and performers into financial uncertainty.”
A Call for Compliance and Integrity
Looking ahead, it is crucial for KECOBO to take responsibility for its actions and to restore trust in its oversight role. KAMP’s CEO Maurice Okoth urged KECOBO to respect the Tribunal’s decision and to work towards creating a fair licensing process. “We now urge KECOBO to respect the tribunal’s decision and restore a fair licensing process, which is the lifeline of the industry,” he stated.
Additionally, KAMP has reaffirmed its commitment to adhering to the law and protecting the interests of its members. The organization, which now includes performers in the music sector, has vowed to continue fighting for the rights of all creatives in Kenya.
As KAMP continues its efforts to hold KECOBO accountable, the entire creative industry will be watching closely. The High Court’s ruling is a step in the right direction, but much work remains to be done. KECOBO must act with the integrity expected of a regulator, and all stakeholders must work together to ensure that Kenya’s creative industry thrives in a fair and transparent environment.
Should KECOBO fail to comply with the court’s orders, KAMP has made it clear that it will not hesitate to seek further legal recourse to safeguard the future of Kenya’s creative industry.
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