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From Studio Booth to DJ Booth - Part 3: Required Viewing

*CLICK HERE FOR PART 1*
 *CLICK HERE FOR PART 2*

I wish to conclude my end of the copyright debate with two documentaries highlighting the current state of copyright law in more developed areas of the world and how it is turning into a menace rather than a well intentioned cause to develop wider society and at the same time benefit the creators of intellectual property.

 RiP: A Remix Manifesto features the popular mashup artist/DJ Girl Talk as a case study of the state of copyright and the madness that has infiltrated the music licensing industry around the world, while at the same time building its case for "The Remixer's Manifesto" - four key talking points that the documentary's creators try to justify.
  
Everything Is A Remix explores the concepts of creativity, originality, intellectual property and copyright on a much wider scale but in four very brief parts that are nonetheless very informative.  
There you go. Enjoy. Discuss. Comment.
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From Studio Booth to DJ Booth - Part 2: Questions for CMOs

*Click Here For Part One*

 In this long overdue second part of this blog post, I sent  the message below to MCSK and KAMP for their input. The  post will be updated if/when they exercise their right of reply. Anyone else can weigh in on the comments section as soon as now. Here's the message below:

Hallo there,  MCSK, KAMP and PRiSK

I have some inquiries to do with your music performance licensing regime with special focus on DJs for a blog article I am working on. They are laid out in seven parts as follows:

1. Sufficient Authorization

Currently, the kind of relationship between artistes and DJs in Kenya is that which the DJ is an integral, almost indispensable part of the music distribution and publishing system. We are well aware that artistes periodically send DJs copies of their work for the sole purpose of being played during the DJs' performances in public at clubs, concerts, public gathering and even for broadcasting in radio shows, podcasts and other media. Does this practice count as sufficient authorization from the artistes to use those works in public performances according to the Copyright Act? If so, why would DJs who perform using music supplied by the  copyright owners for the purpose of public performance need to obtain music performance licenses? Is this reality reflected in the rate of the fees imposed for obtaining a license for music performance?


2. Music Videos
In my opinion, a number of complications arise when analyzing the copyright implications for music videos according to the Copyright Act. Reading the interpretation clause (Section 2) of the Act, the closest description to a music video is an “audio-visual work” which is described as follows:

“audio-visual work” means a fixation in any physical medium of images, either synchronized with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogrames but does not include a broadcast;”

In light of this, which CMO is responsible for monitoring the performance of audio-visual works in public settings? This is an important question since DJing has evolved  and the sub-sector of the Video Deejay (VJ) who performs music videos as opposed to the original musical work.

The second complication arises in the language of that particular section of the Act. Audio-visual works are interpreted as being fixated in a physical medium (videotapes, CDs, DVDs etc.) Does this imply that music videos that exist “in the cloud” on sites such as YouTube do not fall under this category? If so, does this mean that if we apply strict interpretation of the Copyright Act and restrict audio-visual works to those confined in physical media, then a VJ who performs using only videos ripped from YouTube or other video-sharing sites without a license of any sort is not infringing copyright?

3. Royalties Distribution
Royalties allocation is normally a straightforward affair in scenarios where musical works get airplay, are downloaded in their original form or as ringback tones etc etc and the related data is well-documented. However, I am more interested in scenarios where distribution of royalties can get complicated. Take for example distributing the royalties from venue owners of club/discos or concerts - Of course, the ideal situation is whereby only the copyright owners whose works are used in the performances should benefit. Without a system of determining which specific works are used in performances at such venues and how many plays they get in the period for which royalties were collected means that those whose works are not used stand to gain unfairly. How do you work around that challenge to ensure that deserving copyright owners get their dues?

4. Open Data?
The resources available to the public such as forms, rates for various types of licenses and elaborate FAQs sections are much appreciated. However, I would also like to imagine that there is still a wealth of data in your hands that can be made available. For instance, it would be interesting to make the raw data of the royalty earnings of your members/members of other collaborating CMOs in a given period. I believe these types of data sets can be beneficial to your members in terms of promotion, opening up new opportunities and even expose those who are still up and coming in the industry.  What's your take on this?

5. Tainted Copyright

Kenyan producers and artistes do not shy away from infringing copyright themselves in the process of creation of their musical works in varying degrees that range from light sampling to practically lifting an already existing musical work in its entirety and passing it off as an original work instead of a derivative work. You do not have to search very far for examples: I seriously doubt that P. Unit cleared with Island Records/Mango Records to use the popular 90s Bam Bam riddim for their new track You Guy (That Dendai). The instrumental portion of Rabbit's critically acclaimed single Swahili Shakespeare was entirely lifted from Sad Romance by Ji PyeongKyeon without even as much as an acknowledgment of the original work. Black Duo's Rap Kwa M.I.C. -  considered a local hip hop classic by all standards – heavily plucks its instrumental content from Chaos by Talib Kweli, Hi-Tek and Bahamadia off the 1999 compilation album Soundbombing II.

Anyone is therefore justified in questioning the utility of dishing out royalties for such works with tainted copyright. If creators and eventual owners of copyrighted works do not adhere to restrictions against infringement on other works, why should they benefit from the levels of protection and licensing their works are currently enjoying? Where do CMOs stand in this ironic situation?


6. Venue Owners/Event Owners vs. DJs

I believe the mischief being guarded against when imposing music performance licenses is to ensure the party responsible for or gaining from the public setting in which music is performed gives copyright owners of the music used their due. The DJ (if he or she is not the event/venue owner at the same time) merely facilitates the performance of the  musical works. The relationship between the DJ and the venue/event owner resembles that of the employee and employer in tortuous claims. The liability for failing to obtain a license should therefore lie squarely on the event/venue owner, in my view, more so since they are those who stand to gain more as opposed to the DJ. This should make practical sense across the board with very few exceptions. Why then have you adopted the policy of falling back on the DJ when the event/venue owner fails to obtain a license? Doesn't imposing some monetary penalty on the event/venue owner solve that problem instead?

7. Flat Rate for Licenses
Is flat rating the fees for obtaining music performance licenses for DJs reasonable given that this sector of the music industry is not balanced, with a huge gap between the top-earners and the up and coming DJs in terms of income generation? What are the complications surrounding alternatives such as a tabulated fee rate system where one pays according to what one earns?


I am very interested in getting your point of view on these issues.

Regards,

WP
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From Studio Booth to DJ Booth – Part I: DJs Scratching Their Heads over Music Licensing

The extremely heated debate as to whether Kenyan DJs should pay for public performance licenses when performing in public has been raging for a couple of weeks now – local artistes, local DJs, the organizations mandated to issue the licenses and interested stakeholders have been at it, each voicing their interests everywhere from social media to radio and print media. I will now attempt to add some momentum to this discussion with a few pointers.

The legal basis of music performance licensing is well explained by misternv on the diasporadical blog so there is no need to be repetitive. Basically, when a song/musical work is published, different groups have some claim to copyright – the composers (the folks who come up with the various elements that make up the song in terms of beat, stems etc.), the producers (the folks who do the final mastering and recording) and the performers.

 A lot of financial input is involved in the production and publishing of these musical works, therefore these groups have to be compensated for their efforts. This is mainly achieved by issuing licenses to those who intend to use their musical works. To cut down on the hustle and bustle of tracking down each and every copyright owner for authorization to use their works, the right to issue these licenses lies in the hands of these non-profit (collective management) organizations: MCSK (on behalf of composers) and KAMP (on behalf of producers). The fees from licensing then trickles down as royalties to the various copyright owners with PRiSK having the responsibility of making sure that performers are also part of the equation.

In applying the strict letter of the law, DJs as performers of copyrighted material need authorization for the public performance of the musical works involved. In order to obtain such a license, it has emerged that DJs will need to pay the Collective Management Organizations (CMOs) a cumulative fee of Kshs. 31,500.That is fundamentally the state of the law as it is. However, the state of the law as it ought to be could be another matter altogether. The state of the music industry at the moment stands out as an unavoidable challenge to the application and implementation of some of legislation touching on music licensing.



As regards public performance licenses, the long-standing industry custom has been that in clubs/discos/events/concerts involving performance of music, the onus is on club/disco proprietor or the organizer of the event or concert to pay the relevant fees without the involvement of the DJ. One therefore wonders if the focus should be on the organizer/proprietor instead of the DJ if no license has been taken. The organizer or club/disco proprietor usually gains the most from the public performance therefore there is more to gain from ensuring that owners or organizers of clubs/discos/events/concerts obtain the relevant license than ensuring that DJs play an annual flat fee.

On the flipside, the argument for DJs having to pay for public performance licenses is sound especially for well-placed professional DJs who gain financially through playing in exclusive, up-market clubs, public events and concerts. The problem probably lies in the rate of the fees – the majority of upcoming/small scale DJs who play at small establishments for a few thousand shillings do not see Kshs. 31,500 as a reasonable rate for licensing fees. I’m aware that tabulating/calculating fees according to income from public performance could prove immensely challenging for the CMOs but the flat fee must be balanced.

In addition, a vast number of professional DJs receive tracks from musical artistes solely for the purpose of having them play those tracks in clubs, events, radio/TV shows etc – they are called Promo CDs or Promo packs in industryspeak.  In my view, this constitutes sufficient authorization to perform the musical work. The question is whether a DJ who plays music solely from these “promo packs” needs to take a public performance license. This situation also raises the question as to why the CMOs prefer a flat fee for public performance licenses instead of a regime based on actual performance of a musical work.  A flat fee means that even a registered artiste whose work is never played even once in a club/event stands to gain. It also means that the fees are also charged on behalf of the copyright owners who want their work performed by DJs only for promotional purposes and not financial gain.

The CMOs have also intimated that DJs need to obtain reproduction licenses to cater for the practice of copying of musical works from their own private collections of legally obtained CDs and vinyl records to storage devices or through systems such as centralized data banks, music pools or just plain old ripping music videos off YouTube for the purpose of public performance. Other countries including the United States find it difficult to grant a monopoly in a single entity to issue blanket reproduction licenses and leave this to the individual copyright owners.

This brings in the issue of distribution of music by the various copyright owners vis a vis the nature of the DJing these days. Distribution of local music is wanting – partly caused by the fact that the average Kenyan consumer is not used to legally purchasing music. The Camp Mulla debut album proved to be a very elusive item on the first two weeks of its release, for example. Not all local artistes can claim to have a proper release of a single suited for the DJ (in high quality lossless formats such as FLAC or WMA with extended versions, instrumentals and acapella versions). I suspect that there are artistes who consider posting their music on YouTube and handing copies to TV/radio stations a release. This means that the DJ will resort to the above mentioned means of obtaining the music.

In light of the prevailing developments, let’s now see what would be a suitable practice to follow if you are a professional DJ dealing with musical works:

1. Production
If you are a DJ involved in the composition of a song (DJ Kaytrixx in Bamzigi’s Bachette for example?) and have been credited for the song as either a composer/co-composer or performer of the work, make sure you are registered with the relevant CMO to get your share of the royalties.

2. Remixes
Remixes are considered derivative works (those based on an original work) and thus needs authorization of the copyright owners. If they send you the track to remix, that should constitute sufficient authorization. Make sure you and the copyright owners are clear on how you want to deal with the resulting copyright in the remix. You could opt for a one-off flat fee or also claim your share of the royalties accruing from the remix as co-composer of the work or any arrangement that suits you.

3. Mixtapes, Promo Video Mixes and Bootleg Remixes/Mashups
If we were to apply the law strictly, you would need the blessing of each and every copyright owner of each and every track to release these. However, promotional compilations, mixtapes and videos you release for free could fall within the Fair Use category (see below). Bootleg remixes or mashups could also fall within Fair Use.

4. Playing in Clubs, Events, Concerts etc.
Wherever you perform live, make sure the proprietor/organizer has the relevant license. If they are not keen on obtaining one, you could factor in the cost of obtaining your public performance into your overall fee… Good luck with that though…

5. Fair Use
Essentially, you need clearance from copyright owners when recording and releasing your mixes or mashups. However you could rely on the doctrine of Fair Use to justify such use. Fair Use is a defense to copyright infringement designed to permit limited use of copyrighted material without permission to encourage innovation, parody, commentary, criticism, research and such positive results. Determining whether your mix, remix or mashup qualifies as fair use several factors are considered:

If the use is of a commercial nature: If your purpose was to use the works to gain commercially (selling mixtapes or remixes) you should not fall back on this defense
Availability of the original song: It is hard to prove fair use if you use an unreleased track without authorization to reserve the owners right to decide whether to release the song
How much of the original song was used (in the case of remixes/mashups)?:  the less, the better

Has your remix diminished the value of the original song (in the case of remixes/mashups)?: in terms of preference of the original over the remix,  and other licensing opportunities such as preference of your remix for use in TV or radio advertisements over the original could hurt the original song’s copyright owners

***
Watch out for Part II where I ask MCSK and the other CMOs some nagging questions.

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Private Solutions: A Tale of Political Awakening and Coming-of-Age in Africa

"Loss and liberation. They often appear together. Some say this applies just as strongly for countries as it does for individuals." _ Luka Sollo
I intended to write this book review in May right after the glitzy launch of the new political party affiliated with presidential hopeful Uhuru Kenyatta – The National Alliance – but fate had other plans. By some stroke of bad luck, I lost my copy of the book after a brief visit to a cyber café in Nairobi’s CBD (has ANYONE ever recovered anything misplaced in a Kenyan cyber café?)! In as much as I knew where I could get access to another copy of the book I intended to review, I would never get back the relevant timing of the TNA party launch. However, I am luckily afforded another opportunity now that the country is still abuzz owing to Miguna Miguna’s launch of his memoirs, Peeling Back The Mask, written after his fallout with our PM Raila Odinga.

The book I speak of is Private Solutions: A Tale of Political Awakening and Coming-of-Age in Africa, written and self-published in 1999 by Steven Were Omamo, a Director at the World Food Programme and also a role-player in economics and food policy circles of the AU and UN. It proves very interesting reading given the format and content of the story. This novel takes the form of “memoir fiction” or autofiction – an autobiographical account of moments in the lives of fictional characters. What results from this unique style is a book-within-a-book of sorts. Private Solutions is centred on Luka Sollo, an economics lecturer and the member of a newly formed political party of a fictional African country. In as much as the country is fictional, the discerning Kenyan reader will have a great time lifting the thinly veiled metaphors peppered throughout the entire book – references to towns such as Terodlé, Umusik and Urukan, references to geographical features such as The Valley and The Great Lake, etc.


The genesis of the story is the brutal murder of Luka’s father under mysterious circumstances that lead Luka to believe that all is not well when a poor squatter is arrested and charged. It is this quest for the truth (and subsequent death of one of his colleagues) that thrusts Luka into the murky world of domestic politics where he uncovers a sinister plot by politicians from a regional block to secede from the rest of the country and form a secluded government. It is shocking how the situation being envisaged by these rogue politicians mirror all the political upheavals that have shook this country post independence, that is, the creation of ethnic tensions (1992 clashes), military involvement (1982 coup attempt) and the exploitation of ethnic tensions to change the destiny of the country (2007 post-election violence).

Luka shakes off his middle class apathy (often cited as one of Kenya’s socio-political quagmires) and decides to have a say in shaping the destiny of his country in political terms. His acquaintance with one Dr. Tai Ogundipe, a wise and charismatic Nigerian with the flair of Fela Kuti and the determined resolve seen in the likes of Miguna Miguna, further cements his decision and he begins the process of coming up with a political party that will shake the status quo of the nation and finally bring reprieve to its long-oppressed citizens. It is Ogundipe that provides an accurate description of the status quo, which rings true for most African countries:

“First you can be sure that Letat will continue to use the ethnicity card to buy time; more people will be killed, maimed, orphaned, raped, rendered homeless as a result… Second, … new wealth will not be shared by all citizens but will instead accrue to a favored few… Third, mismanagement of your public sector will continue and likely deepen… That is the country you will have by the end of Letat’s current term.”

The subsequent e-mail correspondences between Luka and Ogundipe as the party is formed and progresses provide what can only be described as an impressive guide to creating a progressive political party for Africa. That segment is so good; it is easy to forget that the book is fictional and treat it like essential strategy notes: The party’s top brass comprises of professionals under 40 years of age from different sectors and of both genders. The party is advised not to have a nationalist agenda based on xenophobia and exclusive notions but nationalism striving towards an open, assimilating nation. Their sourcing of funding is mainly from the domestic population who are viewed as “partners” or “investors”, the rationale being that the more the population invests financially in a political project the more committed they will be, as opposed to other parties that rely on foreign funding or funding from a select few to serve the interests of a few. As regards the fight against corruption, Ogundipe points out to Luka that the best method of attacking the vice is not a high profile campaign asking or compelling people to forgo corrupt activities (which in most cases are just private solutions/resorts to wider public problems). The best methods would be to instead concentrate on the wider public problems that fuel corruption –provide basic amenities, improve infrastructure, make vital goods and services more affordable, promote job creation etc:

“If we Africans have a signal feature, it is that we specialize in devising private solutions to public problems. We are compelled to...From the ugly water tanks on house after house even in the most posh residential neighborhood…to the growing number of school age children herding livestock in rural villages during school hours…Shoddy public utilities mean that we all have to be at least partially self sufficient in water and power…Retirees with meager incomes…do as their parents did three quarters of a century ago; they send their kids into the fields with animals…So the point you need to get across to the average man and woman is that a vote for you is a vote for a party that will seek public solutions to public problems.”

As regards washing off tribal prejudices, things take a more personal turn as the party’s top brass (all from different ethnic communities) talk about where their tribal prejudices emerged and it is discovered that the “apathy, paralysis and easily-ignited blind rage” resulting from ethnic-based clashes had been exploited by past and present regimes to keep focused, progressive opposition divided:

“After that things got more personal. We talked about tribalism and what it has meant to each of us as individuals. We lamented the many conversations that had been ruined, friendships hijacked by ethnically insensitive remarks…And each story was tinged not only with anger and bitterness, but also with a strong determination to hold on to that which had been ridiculed – be it foreskin, skin tone, head size, lip size, teeth angle, accent, whatever – and in doing so remain true to the tribe…talking about it helped. We laughed a lot.”

The final punch the book drives home is how the country’s loss can eventually be the beginning of its liberation, as with individuals. The loss of Luka’s father eventually leads to his getting a fresh burst of life and hope through the small gains his party makes in the course of the general elections. The same probably rings true in Kenya. The apparent loss of our lives and freedoms since independence right through to the 2007 Post-Elections violence and beyond should propel a desire to change the status quo, to speak out and oppose injustice and to strive towards the sanitization of our democratic space and rights. And as many have said before, if we see little value in the lives already lost or wasted, then perhaps more should be lost until the point sinks home.

Steven Were Omamo wonderfully crafts the novel for quick, enjoyable reading (being only 160 pages long) despite all the amazing perspectives and raw facts on how to spark Africa’s socio-political renaissance. There are lots of quintessential Kenyan anecdotes and funny incidents to make you laugh along the way to the back cover as well. I dare say that this book is more relevant to the country now than when it was published 13 years ago! There is a sense of political awareness building up right across the board and there still is a lingering question on our minds that remains unanswered: What if the PEV of 2007 had raged on? This book adds further questions – what if it had raged on to the point of secession? As we proceed to another election period soon, do any of the political parties in place come close to resembling the impressive set up of Luka Sollo’s PNN party? Good thing is that the book not only poses vital questions but also suggests much needed solutions as well. The views expressed here are not utopian but realistic ones alive to the unique challenges the African continent is faced with. Everybody should read it as soon as possible.


PS: Now, to my knowledge, copies of this book are very scarce indeed. I could only trace a single physical copy on sale on Amazon. That is why the review is as lengthy and quote-laden as it is – so that as many people as possible get the gist of the book. However, the author may be contacted via his LinkedIn page or the email address provided in the book: swomamo@yahoo.com to discuss getting copies of the book on order.
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