Entertainment4 February 20134 min read

Collecting Royalties from the Decks

Last year around November 13th, there was a fire that was lit on twitter, a fiery discourse between disk jockeys whom we popularly know as DJs and MCSK.

Liz Lenjo, Esq.

Last year around November 13th, there was a fire that was lit on twitter, a fiery discourse between disk jockeys whom we popularly know as DJs and MCSK.

The trouble began to brew when the collective management society Music Copyright of Kenya (MCSK) announced the increase in the Public Performance License that is issued to DJs for the music that they play.

It brought to my attention that a good number of DJs and the public as well do not seem to understand what MCSK’s role is with regards to collection of royalties in Kenya. In a nutshell, MCSK is a registered Collective Management Organization (CMO) mandated under the Copyright Act of Kenya to collect royalties on behalf of the composers, writers,music arrangers and publishers. These named parties have an agreement with MCSK to license music users who use their music for commercial gain and in turn they get paid in form of royalties. This is just a brief introduction, now to the heart of the matter.

The tweets I managed to come across from DJs expressed the fury by them and one of them went to an extent of stating...

“#dearkenyanartists if I were you, I'd find a way to make sure that mcsk doesn't touch the djs. If they do, kenyan music will die”
5:20 PM - 13 Nov 12

And this got me thinking and trying to get into the shoes of a DJ. The mentality has been that a DJ’s work is to freely promote and publicize a Kenyan artist’s musical works. However, they fail to see that as they play this music, they get to earn money from this music while it’s creators do not even get the opportunity to sniff this money. I think it is rather obvious that a DJ makes their livelihood from this music they claim to promote and market. In my own humble opinion you need the music more because it defines your existence.I want to pose this question to Kenyan DJs, “Do you think it is fair that you make money from the hard sweat of our musicians and complain that you should not be licensed?” Guess what! According to the law, Copyright Act of 2001, you should not be in business as DJ if you are not a licensee. It is illegal. It is stealing!

I do not get what the hullabaloo is anyway yet the licensee fee is charged annually. A once off payment which a majority of DJs are able to recover in two days if not hours. The average DJ in Kenya bags at least Kshs. 20,000 per day. Perhaps MCSK should review and ensure that DJs are licensed per gig; by having a set percentage based on the income generated by a DJ per night. If only the logistics involved were not very complicated! But that should be a move worth considering so that the seriousness of the matter is conveyed.

In addition, the international music played by the same Kenyan DJs who want not to be licensed believe that they have the right to do so for free? Oh wow...you are not serious! The Public Performance license is only for live performance at the club or whatever venue you may be playing at. I want to inform you that this licensee fee collected is also collected on behalf of the international artists. It gets to them through similar CMOs in their respective countries that have signed reciprocal agreements with MCSK.

My friend IP Kenya also did a dissection on this matter and put it forward to the Kenyan DJs why they need to wake up, smell the coffee and obtain an MCSK license. For matters of clarification, this license does not cover the production and vending of mix tapes. That is a whole other kettle of fish. A discussion that will follow soonest.

Mr. Kenyan DJ, I hope you are reading this. I hope that you understand how wrong and illegal it is that you should make money from another man’s intellectual property and want to get away with it in the name of free marketing and promoting. Kenyan music will not die, but your career as a DJ shall be in jeopardy. Because soon, we may move to blacklisting non-registered DJs as a legal measure.

I am simply an advocate of the creative minds and their creative works. Do not hate this content, hate the game. Now there is a new voice in town and the dynamics need to be restored as they should have been from the beginning.

A word of advice to the artists out there, before you dish out your latest single or album to a DJ ask for proof that they are licensed, it is the only way you shall cash in on your hard work. And do refrain from the phrase, “Nichezee hii ngoma unipromote!”- Play my song and promote me. It is working to your detriment. You are showing how you lack seriousness as far as your work is concerned. Make it count and play by the rules.

CMO
Copyright Act
DJs
intellectual property
license
licensee
MCSK
royalties

Written byLiz Lenjo, Esq.

MyIP Legal StudioFounder

Strathmore University Law SchoolAdjunct Faculty

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8 comments

Roy4 February 2013

I think it would be totally unfair to make a DJ pay for royalties at the moment. Kenyan musicians actually need us more than we need them. Most of them beg us to play their music. You have a couple of artists, both upcoming and made dropping their music on you almost every single day of the week begging you to play their music. The artists recognize that in Kenya, it is the DJ who is gonna make them. They do not make the DJ as much. And to talk about international music, at the moment, almost every serious DJ out there is now paying for his music from music distribution companies abroad. Kenyan DJ's do not mind paying some sort of royalties for Kenyan music, but MCSK can not just blurt out a ridiculous figure like 20-something K per year and expect all Kenyan DJ's to be okay with it. Sure, a couple of Kenyan DJ's can afford to pay the royalties, but a majority of the Kenyan DJ's cannot afford paying that much. How about MCSK charges the clubs instead for this?

Liz Lenjo4 February 2013

I beg to differ Roy. This is my take...A mobile DJ definitely makes way more than they reveal to be making. We know that DJs make money per gig unless contracted/ employed by a club or any other entertainment establishment. Let's say a DJ has 10 gigs in one week and the play list is more or less the same, he cashes in on this 10 times yet the creator of the music works is lucky to even cash in once. It is why DJs should be licensed. Besides, I doubt that there is a DJ who makes less than 50,000 per annum. Or I'm I wrong. They make much much more. In regards to international music, we would like to see these alleged agreements with the music distribution companies. Until they are provided as proof they remain allegations because MCSK collects on behalf of international artists in Kenya. I think it is also important that our DJs engage MCSK in an orderly fashion and express their concerns and explain their schools of thought to ensure we are on the same page and grow our industry.

WP4 February 2013

Well, I'm in support of the licensing, with all the relevant considerations put in mind, such as the earnings of individual DJs, whether the venue owner should be the one footing the bill etc. The flat fee that the CMOs came up with should be explained. Did they find out how much the average DJ makes? If you ask established DJs how much they used to make when they started out, the figures may shock... After these deliberations are made, the licensing model could also be changed from an annual flat fee to a quarterly flat fee... This could be one of the ways to change the perception of the fee being unreasonably high... The rest of my arguments regarding this can be found in my blog as well here - http://willpress.blogspot.com/2012/11/from-studio-booth-to-dj-booth-part-i_18.html And here: http://willpress.blogspot.com/2013/01/from-studio-booth-to-dj-booth-part-2.html

David Major4 February 2013

As an artist I recognize how difficult it is to get your material out there. I say this with all due respect to the various platforms out there that allow us to share our music, lose this 'musicians need us more than we need them' mentality. How dare you say that! While I cannot deny that there is a service you provide there is no way in hell it can be a one way affair. It must be a symbiotic relationship that should in fact favor the artist. Because truth of the matter is without music there would be no DJs, no entertainment on radio or TV, no Idols, no Project Fame, no soundtrack to a movie, etc. You all have some nerve to blatantly be indifferent to this fact, indifferent to the blood, sweat, tears and money that we put into creating music. Why should you be the only ones to profit from it? In what universe is that fair? Let me leave you with a thought I state perhaps very boldly. Most if not all of us can learn how to DJ. Trust me when I say not all of you can learn to be vocalists, instrumentalists, composers, producers etc. You make a living re-working or more often than not just playing as is what has already been created.

Lusi3935 February 2013

My two-cents on this issue would be first i guess even before we get to the how much, its important, like David Major, alluded to above, to ascertain the the question of ownership of the "musical works" being used and commercially exploited by the DJs. Secondly and closely related thereof is the question over what rights such ownership confers over the owner of the "musical works". Quick responses to this two questions would be that the artist [or subsequent assignee or licensee] holds the ownership referred to us Copyright in the musical works. This ownership entitles such copyright holder to amongst other things, the right to control public performance of his/her music, distributorship or any adaptation [which is what a DJ essentially does]. These acts can only be performed with the consent of the copyright holder [either through licenses or assignments which is what MCSK, KAMP, PRSK and others do on behalf of their members]. Anything to the contrary is illegal. Well that is the law, look-up Copyright Act, 2001. On the other hand the whole essence of legal protection over intellectual property rights [especially Copyright law] is to afford artists protection over their economic rights in their creations-meaning they need to get paid for their work [with exceptions under fair use where no commercial gain is unfairly sought by the 'user'-pun intended; and also moral rights meaning the must be acknowledged as creators of the work where possible and work used in a manner that doesn't demean them. That being said the basis/foundation of restricting use of copyrighted work is sound. Now to the practical, again I agree with David Major, it is a symbiotic relationship between DJs and artists, save to add both industries need each other to survive. Therefore as a DJ 'promotes' [erstwhile getting paid for it] s/he should ensure that the artist who gets him/her material [read musical works] to promote [and get paid doing it] also gets his/her fair share least of all for the effort of creating something "promotable". However their is need for a stake-holder forum to discuss a fair valuation on the licensees to be offered to DJs and not blanket summations/presumptions on money/fees paid out to DJs; as well as an equitable criteria looking at the value add-ons where DJs "promote" artists. I also think that it is the DJ to pay for the license, contrary to WillPress's view, as at first instance they are the parties that derive the benefit from the license [source of livelihood/a job]: they could then factor that fee in their fees or if they are "in-house DJs get their establishments/employers to pay for the license on their behalf. Lastly Roy alluded to agreements between the DJs and international music distributors. I am tempted to think these arrangements are purchases and not licenses to exploit the copyrighted works [I stand guided on that one] as these international distributors as Liz rightly mentioned, are members of their countries' collecting societies which have reciprocal agreements with the MCSK to collect royalties for and on their behalf.

David Muriithi14 February 2013

As a former artist manager to some of the top local acts in the last 15 years (and international prior), DJ over the past 24 years (!), IP enthusiast, former auditor and business capacity building trainer to creatives all across Africa - All I can say is...... You play, you pay. It really is that simple. If as a DJ you cannot afford to pay 20K a year, you should consider taking up farming. I know this sounds harsh, but then you are NOT in the business of DJing. It is a known fact....and let us call a spade...a spade.....that most DJs engage in obtaining music from various sources including illegal downloads via soundcloud, youtube etc and exchange between fellow DJs. The least you can do is at least pay for creative effort. Having said all of that, IP issues are fairly emotional, especially when not fully understood. So, perhaps MCSK (Liz, Maurice etc) needs to have a discussion forum to discuss this issue further and engage the DJs and reach a compromise that will ensure sufficient compliance rather than take a HEAD-ON approach. I believe if properly and carefully explained and negotiated, then you may see better compliance....seeing as some of these DJs are also your members. My 2 cents worth :)

David Muriithi14 February 2013

Also se discussion on the same on http://willpress.blogspot.com/2012/11/from-studio-booth-to-dj-booth-part-i_18.html

Liz Lenjo21 August 2013

I recently had a discussion with a renown DJ and just to get him but it was rather obvious that they could care less. Quite an unfortunate realization. I also proposed that may be they should look into forming a DJs Association or Union but that was also not well received. I guess money is their only bottom line. May be one day we shall mobilize them and hopefully have a fruitful discussion. Just a point of correction, I left MCSK :-). Few DJs pay licenses to play music, and I am proud of those few law abiding citizens.

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