Last year, a local hotel Nairobi Pacific moved the courts praying that the Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRISK) be restrained from entering their premises and ‘harassing’ them and collecting performance fees. Their argument was that since they already had a Public Performance License issued by the Music Copyright Society of Kenya (MCSK) that they had complied with the law and was sufficient for the protection of the rights of the producers and the performers. Of course this was a very uniformed argument to be made by the Applicant, showing such a lack of understanding of copyright and related rights.
Thankfully, the learned court in its ruling explained the system that is copyright and stated expressly that there is a DISTINCTION between the Public Performance License and the Communication to the Public License that is issued by KAMP-PRISK for the related rights they represent under copyright. The hotel has since been ordered to pay for the license which they were trying to run away from paying and further pay the costs of the Respondents (KAMP-PRISK) for filling the ill-advised suit.
This is where I see the problem lies:
I recently sat at a meeting where various stakeholders in music had a sitting and were discussing all issues copyright and licensing. An official from the Pubs, Entertainment and Restaurants Association of Kenya (PERAK ) argued that they do not see why they should pay different licenses where performance of music is concerned. The analogy they used was so outrageous and I feel that I MUST share it with you my reader.
They used the analogy of a plate of Ugali, Sukuma Wiki (kale) and Fish, a simple Kenyan favourite meal. They argued, “ Is it fair for you to go to a restaurant and the bill arrives as different bills for the farmer of the maize produce, the kale farmer, the fisherman, the waiter’s fee, the chef’s fee and any other fees imaginable that are related to the meal and transaction? What an argument, what an analogy! How can we dare compare copyright and related rights to food bought at a restaurant?
PERAK being an authoritative body representing owners of entertainment spots should undertake the role of educating its members on the law, especially the elements that concern the legality of their course of business. One of the philosophies behind leadership, the social contract theory is centered on the impossibility of a group of people to lead at once and hence contract a smaller group or one individual to lead on their behalf and represent their interests. So, why doesn’t the body educate their members on the law? Should it not be part of their mandate to benefit its members with education to build good business practices?
The law is the law and it must be followed to the letter. Failure to which, there are consequences attached. And even when we have a ‘problem’ with the operation and implementation, as a solution is being sought we must continue to follow the law. We cannot stop and say we are unhappy and we cannot comply. That is breaking the law. Plain and simple. We must respect all the rights vested in copyright. A piece of music does not exist without the existence of the different rights. That we must and need to appreciate. In my humble opinion, they are equal rights because they cannot exist without each other.
With this victory in favour of KAMP-PRISK, we have forged a further step to realizing and appreciating the various talent categories in the arts industry. We are a step closer to getting it right.