By Deborah Wanjugu

On 16^th May 2022, presidential aspirant Raila Odinga unveiled his running mate, Martha Karua, at a pomp-filled event at the KICC grounds in Nairobi. In preparation for the day, his team approached the collective management organizations to acquire licenses to play music as part of their campaign throughout the campaign period. The CMOs obliged and issued the Presidential Campaign with a license valid until 6^th May 2023 in exchange for Kshs. 562,500.00 as the royalty fee. 

After Martha Karua’s unveiling the Raila Odinga Presidential Campaign used the song ‘Extravaganza’ by Sauti Sol to accompany a social media clip rehashing the unveiling. A few hours later Sauti Sol issued a statement saying it did not authorize the use of its song for synchronization purposes and was going to take legal action against the Azimio campaign. Shortly thereafter, Ezekiel Mutua, CEO of the Music Copyright Society of Kenya (MCSK) defended the CMO position in a series of tweets, stating that CMOs had been issuing synchronization licenses for decades and that Sauti Sol’s complaint was unfounded.  

Stalemate.  

Who’s right?  

Who’s wrong? 

Music Copyright 101 

Perhaps a better place to start is explaining how copyright works in the music industry. Copyright refers to a combination of economic and moral rights that enable an artist to be credited for their work and to make money from their work. In music copyright refers to the right to be accredited for one’s contribution in a musical work, and the right to earn an income from that contribution. 

That income is earned through direct sales of music which the artist can collect either directly or through a publisher, through streaming, live performances, and (ideally) through royalties paid to the artist by CMOs which collect licenses from radio and TV stations, entertainment venues and public service vehicles.  

One song contains different types of copyright and different CMOs are licensed for those types. The first is copyright in the composition I.e. the lyrics, melody and beat. The CMO licensed to collect royalties related to this copyright is MCSK. The second is copyright in the sound recording, I.e. the recorded version which is aired on radio, TV or streamed online. Copyright in the sound recording is a bit more complex. It attracts a mechanical license, which is the right to make physical and digital copies of a song. Mechanical rights are administered by MCSK. The sound recording also attracts a public performance license which is administered by PRISK. Lastly is the producer’s right in a sound recording, which is managed by KAMP. The three CMOs collect their royalties together and issue a single license to users to avoid confusing the public. 

CMOs only help the artists manage their economic rights, but there is another right mentioned – moral rights. These are the right of attribution, meaning the right to be known as the author of a song, and the right of integrity, meaning the right not to have your music used in a manner that would be detrimental to you as an artist. This right can only be administered by the artist, and when they die it passes on to the next of kin.  

So far we have discussed mechanical and public performance rights and the CMOs that administer them, but not synchronization licenses. Who manages those? Legally, the artist does. Synchronization licenses do not apply to all musicians at large and so it makes no sense for CMOs – whose job is collective as their names suggest – to be involved. Synchronization in copyright refers to combining the audio of a song with a third-party video, e.g., using a popular song for an advertisement to be aired on TV. The licenses are negotiated between a musician and third party that wants to use their song in a film, television show, advertisement, etc. The nature of the contract is that the use is for a particular song and for a particular period. They are unlike the public performance licenses which cover entire discographies of several artists for a lengthened period (yearly).   

The Verdict 

So back to the questions. Who’s right? Who’s wrong in this whole Sauti Sol/Azimio story?  

Well, when one applies the law to the facts we have, it’s possible to see how the CMOs and the Raila Odinga Presidential Campaign got it wrong.  

The Raila Odinga Presidential Campaign was probably misguided on the extent of their license. It’s possible that they could have known the true position of the law, but it’s more probable that they were misguided.   

The CMOs on the other hand, either didn’t know the true position of the law or knew but ignored it. Neither position is good for their members or the public at large.  

Sauti Sol were right to assert their economic and moral rights. The economic part has been explained in detail.  

But how did they assert their moral rights? By stating they are purely apolitical and non-affiliated with any political party or candidate.  

Finally, the arbiter, the Kenya Copyright Board, issued an advisory opinion on the whole matter. It stated that the license given to the Raila Odinga Presidential Campaign is limited to public performance of local and international music. It does not extend to synchronization. This seems to have put the matter to rest for now. It remains to be seen whether Sauti Sol will indeed take legal action against the Raila Odinga Presidential Campaign.  

Conclusion 

This would all have been averted if the Copyright Act was clearer on such terms. For one, it does not define or even mention synchronization anywhere in its pages. Secondly, not one of the sections touching on CMOs mention their limitations. So what is to stop CMOs from pushing boundaries?  

Calls have been made for a complete overhaul of the Copyright Act, replacing it with a new law that substantively deals with copyright matters once and for all. 

Perhaps the time has come to take this call more seriously before more damage is done.