The recent mobile phone craze dubbed Skiza has proved to be quite popular amongst Kenyan youth. Basically, when you subscribe for a Skiza tune from Safaricom, your callers get to hear music from a local artist of your choice instead of the normal old dialling tone. What’s more, the subscription is renewable on a weekly basis. In effect, you are paying to entertain your callers.
Question on all our minds; does all this money made through Skiza trickle down to the artists? And more importantly, are the artists and music producers aware that their music is being used in such a manner? If not, is Safaricom infringing on their copyright?
According to copyright law ownership of copyright in respect to musical works belongs to the composer but ownership of the copyright in respect to sound recordings belongs to the producer. The composers and producers have the exclusive rights to reproduce, distribute, import or broadcast the music. These rights may be assigned or licensed to a 3rd party for a specific period. However, the assignment or license must be in writing. (To learn more about step by step registration of copyright in Kenya click here.)
Where a 3rd party exercises exclusive rights without the permission of the rights holder, he infringes on the rights and is liable to both civil and criminal action. This means that the aggrieved parties are entitled to damages and injunctions under civil litigation and the offender is likely to get a fine or a jail term where criminal proceedings are instituted.
Usually, if a license is granted for use of a copyrighted work the 3rd party pays royalties to the copyright owner. Royalties are regular payments made to the author, composer, producer, or publisher in respect of copyright protected works.
In Kenya, artists, composers & producers of musical works assign the right to royalty collection to 3 collecting management organisations (CMOs): Music Copyright Society of Kenya (MCSK), Kenya Association of Music Producers (KAMP) and the Performers Rights Society of Kenya (PRISK). These CMOs charge a blanket fee which covers the public use of the entire musical repertoire of all their registered members for a specific period of time. This includes music that is broadcast over radio or television, music played in restaurants, malls, matatus (public service vehicles) and even music that is streamed or downloaded on the digital realm.
Here’s a rough idea of how royalties are paid out according to international standards.
Record companies invest in the creation of permanent recordings of artists’ performances. Once created such recordings are capable of being exploited by way of sale to consumers or broadcast or public performance of the sound recording. Record companies may acquire all or part of the rights from the composers, but receive the lion’s share of the royalty due.
A studio producer supervises the creation of a sound recording in a studio. This person may be different from a producer who is hired by a record company or works as an independent party to oversee the recording of the work. Royalties payable to him are subject to the contract between himself and the record company or the party that hired him to do the work.
Composers and authors have rights to the melody and lyrics in a song. They also have economic rights to the song and usually receive a percentage from sale of their music.
In terms of the CMOs mentioned; MCSK collects royalties on behalf of authors and composers i.e. the artists who come up with the lyrics and the tune/melody of the song respectively. KAMP collects royalties on behalf of producers i.e. the person who finances the recording, and PRISK collects royalties on behalf of performing artists i.e. the artists who sing the vocals and the artists playing the instruments in the recording.
How do we tie this to Skiza tunes? Safaricom simply provides a mobile platform whereby aggregators of music/digital content (companies such as Cellulant) may upload digital content for download by the public. In most cases the digital content includes wallpapers but the bulk of it is music. As far as Safaricom is concerned, it is simply offering a value added service, apart from telephony which is its core business. The content uploaded onto the Skiza portal is fully the responsibility of the aggregator/hosted company which must ensure that it receives all licenses and clearances to use music on the digital realm, and so as far as copyright is concerned Safaricom is not liable for infringement.
Of course a vast number of downloads occur on a daily basis, and I bet the amounts received from this enterprise are staggering! However, I would hazard a guess that Safaricom retains a majority percentage of profits (because at the end of the day Safaricom hosts the platform), leaving the minority percentage of profits to be the shared by the hosted Company and the artists and producers whose music is being downloaded.
For instance, if Safaricom retains 80% profits, and only 20% profits are left to be shared, obviously it leaves very little for the artists and producers to take home. Keep in mind the 3 CMOs that have to collect money on their behalf will each get a paltry amount to share amongst their hundreds of members…
My advice, producers and artists should grow a back-bone, get organized and collectively bargain for the lion’s share instead of the piecemeal! That way they’d be smiling all the way to the bank instead of bitterly complaining amongst themselves!
Post by Sarah Ochwada- Entertainment and Sports Lawyer, Nairobi-Kenya
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