(Live) streaming of sound recordings in Kenya: what is the appropriate question?

Last week, Kenya’s copyright regulatory authority, Kenya Copyright Board (KECOBO) issued a clarification on the issue of rates payable and responsibilities of Disc Jockeys (DJs) for streaming recorded music on digital platforms. KECOBO provided its own take on how much DJs and/or owners of business premises that play recorded music should pay to Collective Management Organisations (CMOs) and whether or not DJs should pay to stream recorded music online.

 

This clarification is coming in the wake of the proliferation of live streams of DJ sets as people all over the world cope with lockdown restrictions aimed at curbing the spread of the coronavirus. Indeed, fellow Kat Eleonora has provided an analysis of the issue from the perspective of the EU DSM Directive, and opined that digital platforms may require the licence of copyright owners to allow the user-DJ to live stream third-party protected sound recordings. Eleonora's post on the IPKat is here and her extended analysis is available here.

This post reviews KECOBO’s clarification in the light of Kenya’s copyright law and practice.

The clarification from Kenya Copyright Board
KECOBO clarified that DJs who wish to stream sound recordings on digital platforms are subject to the terms and conditions of the platform they wish to use for the streaming. It further stated that such streaming is outside the purview of its authority and also outside the purview of CMOs.

KECOBO proceeded from the premise that public performance of sound recordings at a physical venue will require a CMO licence. Where a DJ is involved in the public performance (the “DJ Factor”), the CMO licence is to be procured by the owner of the physical venue where the public performance is to take/takes place. Where the owner of the physical venue has not procured such licence, the DJ is required to pay Sh10,000 ($94 approximately) annually or Sh750 ($7 approximately) per gig/event for such CMO licence. See paragraph 1 of the clarification.

A practical example: Hotel X invites DJ C to “perform” at its event. DJ C will need to ask Hotel X if it has a CMO licence because if Hotel X has no licence, DJ C will need to pay Sh750 for that gig.

From the foregoing, the ultimate responsibility for procuring CMO licence with respect to public performance of a sound recording with a DJ Factor lies with the DJ. [But, the physical venue needs a CMO licence if it engages in public performance i.e. if it plays recorded music.]

With respect to (live) streaming on digital platforms (i.e. public performance of sound recordings in a “digital venue”) with the DJ Factor, KECOBO clarified that DJs must liaise with digital platforms themselves. According to KECOBO, “Deejays are required to acquaint themselves with terms and conditions of services of the platforms that they intend to use and comply including paying for the music usage locally”.

Public performance under Kenya’s Copyright Act 

Copyright in a sound recording includes the right of “making available of the sound recording in whole or in part either in its original form or in any form recognizably derived from the original”. Section 17(a) of Kenyan Copyright (Amendment) Act 2019. This would involve public performance, which in terms of Section 2(m) of the Kenyan Copyright (Amendment) Act means “making the recorded sounds audible at a place or at places where persons outside the normal circle of the family and its closest acquaintances are or can be present, irrespective of whether they are or can be present at the same place and time, or at different places or times, and where the performance can be perceived without the need for communication to the public”.

 

Public performance rights are usually assigned to CMOs to administer and manage. In Kenya, the Kenya Association of Music Producers (KAMP) administers these rights for producers of sound recordings and collects licence fees from users under a KECOBO-approved joint licence scheme with Performers Rights Society of Kenya (PRISK) and Music Copyright Society of Kenya (MCSK).

What the copyright laws and the joint licence scheme does is to indicate a requirement for the procurement of a CMO licence where a third party (DJs inclusive) is engaging in the public performance of a sound recording.

(Live) streaming as public performance: is a CMO licence not required? 

If we now go back to the clarification presented by KECOBO, we may rightly conclude that KECOBO is responding to the question of who is engaging in the public performance of a sound recording in a digital venue (i.e. the platform for the DJ’s (live) streaming). KECOBO says it is the DJ involved in the (live) stream and that such activity is outside KECOBO and CMOs’ jurisdiction, ergo no CMO licence required. Instead, KECOBO observes that owners of rights in sound recordings have arrangements (rights management information monitoring technology) with digital platforms that may lead to blockage of the streams.

But, is that the only question? Or, the appropriate question? What of the question of whether copyright owners themselves or CMOs are the appropriate licensor with respect to sound recordings intended to be (live) streamed on digital platforms? If physical venues that play (i.e. publicly perform) recorded music need a CMO licence to validly do so, why shouldn’t digital venues need such licence? If nothing so the DJs can “shelter” under the digital venue’s licence to do their live streams. Basically, if the onus of the responsibility to procure a CMO licence changes with the “DJ factor” for physical venues but the requirement to procure CMO licence remains, why should the digital venue obviate the CMO licence requirement? [Some Kenyan DJs are of the view that the licence requirement for both physical and digital venues is unfair.]

The appropriateness of this question is further revealed when one considers that Kenya is one of the participating countries in the centralized hub and digital licence for pan-African repertoire created by South Africa’s Composers, Authors and Publishers Association (CAPASSO) in 2019. In many ways, the hub is similar to KECOBO-approved joint licence scheme as it offers licencees (in this case, digital platforms) an Africa-wide repertoire on a multi-territorial basis in order to facilitate ease of access to music across various African countries. [Won’t KECOBO’s clarification requiring DJs to liaise with each platform translate to balkanising the licensing process that KECOBO and CMOs have already coalesced in the physical space?]

Corollary to the foregoing is the question that Kat Eleonora sought to answer from the perspective of the EU DSM Directive: whether the owner of the digital platform needs a licence to allow a DJ to live stream third-party protected sound recordings in Kenya? [Put differently, under Kenya's copyright laws, are digital platforms engaging in or causing DJs/others to engage in an act of public performance of a sound recording when they permit DJs to use their platforms for live streaming? If they were, they would require a (CMO) licence, right?]