Piece by: MOSES ODHIAMBO

17 November 2021

Performance artistes and creatives would earn 52 per cent of proceeds from ringback tunes – known as Skiza tunes — should MPs pass a bill changing the formula for revenue sharing.

The Copyright (Amendment) Bill, 2021, sponsored by Homa Bay Woman Representative Gladys Wanga provides that premium rate service providers would get a seven per cent share of the net revenue from the sale of ringback tunes. Telecommunication operators would be entitled to 16 per cent of net revenue.

“The object of the bill is to provide for a fair formula for sharing of revenue from ringback tunes between the artistes/copyright holders and the telecoms companies,” Wanga said in the bill's memo.

Under the current sharing formula of Skiza proceeds, artistes get 16 per cent, 25 per cent goes to tax, while Safaricom retains 51 per cent. This revenue sharing has been a bone of contention among sector players.

The bill further provides that internet service providers are barred from haphazardly taking down content that is alleged to be an infringement of copyright.

Section 35B of the Act states that a person whose rights have been infringed by content accessed through an internet service provider may request for the content to be removed.

“The bill proposes to repeal the provisions on takedown notices and requirements, the role of ISPs and application for an injunction. It is intended to remove the ambiguity in the role of the internet service provider.”

The law provides that ISPs can disable access to the content within 48 business hours unless it receives a counter notice contesting the takedown, which is argued to have hurt many budding musicians.

Wanga has also proposed to delete the provision that ISPs can give information to investigative agencies regarding the identity of subscribers suspected to be engaging in infringement of content.

Also to be removed is the provision of the law that a person may apply to the High Court for interim orders when they have reasonable grounds to believe their content has been or may be infringed upon.

The Bill is part of the promise ODM leader Raila Odinga made to artistes who have been urging him to intervene over unfair practices by telcos and premium service providers.

Telcos are accused of taking the lion's share of the proceeds yet it is the artistes who sweat in production studios and entertainment platforms.

During the debate on the Finance Bill, 2021, when MPs excused artistes from paying 25 per cent excise duty, Wanga said it was regrettable that creatives were earning peanuts.

“Our artistes sweat to record and play their music and they are never rewarded. The reward is small compared to the investment they make,” she said.

At that time, the MP promised to bring amendments to the Copyright Act to see the artistes take home the lion's share of revenues from ringback tunes, hence, the bill.

The proposed law seeks to establish a National Rights Registry as an office to be housed within the Copyright Board and run by the board's staffers.

Its functions would be to conduct digital registration of rights holders, copyright works, authentication and authorisation of works, media monitoring of registered works, as well as tracking, monitoring, and dissemination of data related to access of registered copyright works.

“The board shall cause to be developed and maintained an online portal for registration of copyright works to be known as the National Rights Registry,” the Bill reads.

The proposed law posits that an author of copyrighted works or holder of copyright may register his or her works on the registry, and upon payment of the prescribed fees, may access the copyright works.

Wanga’s bill further says the Cabinet Secretary may prescribe fees for accessing the national rights registry, format of registration of copyright works and type of eligible works.

President Uhuru Kenyatta’s administration introduced a centralised system for the collection of artistes’ royalties following concerns the creatives were being shortchanged.