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Image credit: Sessionville

Following a previous blogpost here on the constitutionality of s30A of the Copyright Act and the role of CMOs, this blogger will now consider whether it would be worthwhile for Kenya to enact a Performance Protection Act encompassing the intellectual property rights proposed for audiovisual performers in the Beijing Treaty (when it comes into force; that is, once 30 eligible states have ratified the Treaty). It would be worthwhile to mention that Kenya signed the Treaty on the 26th of June 2012, although she is yet to ratify or accede to the Treaty.

In the wake of the recent Malindi High Court judgement discussed here, this blogger would like to propose the enactment of a Performers Protection Act in Kenya, as the ideal solution to resolve the role of collecting societies and the payment of royalties to performers. All the parties would be involved throughout the legislative process (in line with the requirement of public participation under Article 118 of the Constitution).

To give some context, in 2012, the Beijing Treaty on Audiovisual Performances was adopted by the member states of WIPO (World Intellectual Property, although the Treaty is not yet in force. The Treaty, if enacted, would extend Intellectual Property protection to the fixated [an embodiment of moving images, whether or not accompanied by sound, that can be perceived, reproduced or communicated through a device] and unfixed [live] audiovisual performances. Prior to the Beijing Treaty, only audio performances were protected under the WPPT (WIPO Performances and Protection Treaty), the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the International Convention for the Protection of Performances, Producers of Phonograms and Broadcasting Organizations (Rome Convention).

The South African Performers Protection Act is currently undergoing amendments in order to afford audiovisual fixations, the economic and moral intellectual property rights envisioned in the Beijing Treaty, as well as to effect royalty payments to performances that are played or broadcast. Consequently, the intellectual property protection proposed for audiovisual performers in the Beijing Treaty include: 4 kinds of economic rights for audiovisual fixed performances entailing the right of reproduction, distribution, rental and making available to the public; 3 kinds of economic rights for unfixed or live performances giving rise to the right of broadcast and remuneration for the broadcast (excluding rebroadcast), the right to communicate to the public (with certain exceptions) and the right to fixation, as well as moral rights including the right to be identified as the performer and the right to object to the modification or distortion of the performance bearing in mind the nature of the audiovisual fixation.

The enactment of a Performers Protection Act in Kenya would afford both audio and audiovisual performances intellectual property rights as envisioned in the Beijing Treaty. This protection, if embodied in the Act would extend to performers that have their music on platforms such as Skiza. These provisions might be the resolution to the issue of the mode of royalty payments by Safaricom to performers; either through the Content Service Providers (CSPs) or collecting societies.

The provisions in the Act would  include: a definition for a performer, a definite term for the protection of performers rights; stipulated mode of payment of royalties, the reciprocity of performers rights to other WIPO member countries in Kenya, restrictions on the use of individual and collective performances [with exceptions on the prohibition on the use of these performances without the performers’ consent], stipulated damages and situations where injunctions may be issued by the court for the infringement of performers rights, offences and penalties for the contravention of performers rights together with other provisions that stakeholders would deem necessary for the protection of performers intellectual property rights.

In the next post, we will explore the National Music Bill which has been touted as a possible solution to artists woes in Kenya.