In rather bizarre, unreasonable and hateful news, the Kenya Copyright Board (KECOBO) wants DJs to pay Ksh 200,000 to do live streams. Paul Enyenze, the MCSK Operations manager told the e-Daily that this kind of license would be issued to the DJs at a flat rate of around Ksh 200,000 a year. That is if they’re not making any money from using the content.
Obligatory disclaimer: I am a DJ/Producer, not a lawyer! This article is entirely my opinion, and does not, nor is it intended to, constitute legal advice.
KECOBO issued a statement clearing the confusion regarding this. DJs will not pay Ksh 200,000
Age of Live Stream
Since the coronavirus was declared a worldwide health pandemic, many sectors, including entertainment have been hit hard. In a report by Heva Fund, it was noted that 97% of businesses in Kenya’s Cultural and Creative Industry have been directly affected. Additionally, Havard has predicted that large gatherings might not return soon. We might need social distancing on-and-off, likely into 2022. This is bad news to people in the entertainment industry as they depend on gatherings to generate income.
For their survival, Kenyan DJs took to online streaming like their counterparts across the globe. This change has forced DJs to reinvent their act. In a club, the DJ feeds off the energy of the crowd and they are able to read the mood. Online streaming platforms have several limitations but DJs have risen to the challenge. With no existing business models, the virtual parties have been turned into community-based organizing. DJ entertains, the audience donates or sends contributions. Simple. This has helped to stay engaged with fans and encourage a sense of communal spirit.
New Copyright Challenge
It is undeniable that DJs promote the artist in a major way. This mindset is rather common among DJs. However, this new paradigm of DJs broadcasting directly to the public presents a new unprecedented copyright challenge. DJs survival does not rule out that peoples intellectual property rights are being exploited. In the same breathe where DJs are getting “tokens of appreciation”, people who made the records are entitled to compensation.
In theory, every DJ doing a live stream should clear licences of tracks they are playing beforehand. However, this is difficult in practice and the process can take weeks. This, lack of incentive and the general lack of copyright expertise (and interest) by DJs have seen non-compliance across the board.
The responsibility to monitor the content being broadcast lies with the platforms. Facebook, Instagram and Youtube have cleared rights with the major labels and performance rights organizations. However, strikes are still issued and mixes pulled down. Perhaps Mixcloud is the most artist-friendly platform at the moment. Their agreement with performance rights organizations makes it possible for DJs to legally live stream both audio and video. If we are truly honest about wanting to make streaming sustainable, we must talk about rights therein.
First, I would like to point out at this juncture that there are several licences at play here. These are dependant on the platform and various factors. Secondly, I am also assuming that DJs are playing music that they do not own. Thirdly and finally, I repeat that I am not a lawyer.
1. Master and Mechanical License
If you finance the studio time, then the person who pays the bills is the executive producer and owns the master recording. This means that a song can have multiple copyright owners. Additionally, there are mechanical royalties. Yes, even for streaming services like Spotify, Apple Music, Mixcloud and other platforms. If you live stream a multi-song DJ set featuring mostly tracks that you do not own, you’re technically on the hook for a separate master and mechanical license for each third-party song in the set. Playing songs radio-style (in the background of your stream) also requires a master and mechanical licenses for those songs.
2. Sync License
You will need a Sync license for every song if you want to rebroadcast your live stream in the future or make it available for on-demand viewing after the fact. If viewers can only watch the live stream once, in real-time — you could potentially make the argument that the inclusion of music in your live stream is an instance of ephemeral use. unfortunately, this is not universally acceptable and might be argued down.
3. Public Performance License
This license covers the right to play a given song in physical locations or via other forms of public transmission (e.g. terrestrial radio, cable/satellite TV, online audio and video streaming). Clubs get this license from performing rights organizations (PROs) to play both recorded and live music on their premises. This is the license that KECOBO wants to charge for. It is important to note that this license does not cover live streams!
In many instances, DJs do not have to obtain public performance licenses manually if the platform they are using has already struck such deals on a blanket basis. For instance, Facebook, YouTube pay licensing fees to all major labels, publishers and PROs to allow music content to stay up on their sites. Consequently, this removes individual uploaders from the hook.
KECOBO Demands Are Unreasonable
In a sane country, the government agency responsible for copyrights would convene a meeting with rights holders and rights users to chart a long-term plan. Unfortunately, KECOBO made a declaration with an outrageous figure which was then carried around by the media. I would also like to point out that the figure of Ksh. 200,000 might be unlawful. It is not mentioned anywhere in the Joint Collection Tariffs as issued under Legal Notice No. 107 of 2019.
Will KECOBO stop DJ mixes from being struck down after DJs get licensed? Likely not as KECOBO does not have control over the said platforms. This makes KECOBOs demands seem unreasonable. The agency needs to stop with the stunts and start working for the artists. They can do this by getting into agreements with these platforms which will remove the burden from the already broke DJs.
Whatever they decide going forward, it should be noted that KECOBO does so little for the creatives yet demands so much of them. The body tasked with the mandate of protecting copyrights and spurring creativity is out of touch with copyright holders and users.