Kenya: Questions abound as blank tape levy takes effect

According to a statement issued by the Kenya Copyright Board (KECOBO) this week, “the implementation of the blank tape levy will begin on 15 September 2023 in accordance with sections 28(3)(6) and 30(6) of the Copyright Act and the second schedule part B of the Copyright Regulations 2020.”

A private copying levy is a nominal fee imposed on the sale of blank media and devices such as CDs, DVDs, USB drives and smartphones, which can be used to make personal copies of copyrighted content. The levy is payable at the point of entry to the country or at the point of first manufacture locally.

This levy is imposed by the copyright law to compensate copyright holders for potential revenue lost when individuals make private copies of their copyrighted works such as music, films or software. Private copying allows individuals to make personal backups or copies of copyrighted material for their own use, such as making a backup of a music CD or copying a movie to a personal device.

The concept behind the levy acknowledges that people often copy music, films or other copyrighted works for their personal enjoyment, creating a potential loss of revenue for creators and copyright holders. Therefore, it seeks to strike a balance between personal use and fair compensation of creatives for the use of content without explicit permission.

However, questions abound on how exactly the collected royalties will be distributed and how rights holders will be classified. While a similar mechanism has been implemented successfully in developed markets, it remains to be seen how this can be replicated in Kenya.

Players in the Kenyan cultural and creative industries, especially those in the music sector, are concerned that poor regulatory frameworks may deprive artists of the much-needed funds.

While expanding the royalty collection is something they welcome, experts fear a lack of solid institutional mechanisms at Kenyan collective management organisations (CMOs) may defeat the purpose of the levy.

Nairobi music lawyer Robert Asewe is worried that just has been the case with royalties’ distribution, the Kenyan artist is likely to be shortchanged again.

“My biggest concern is that we are introducing this when we have not put our house in order,” Asewe told Music In Africa. “Kenyan CMOs operate on goodwill and not by express provisions of law. There are many grey areas here and if this is not anchored in law, then we are going to experience the same scenario where it is difficult to account for the distribution of the money collected.”

Asewe believes this concern is the reason a case was filed at the High Court in Nairobi on 13 September seeking to block KECOBO from releasing the funds collected from the blank tape levy to CMOs.

However, the Music Copyright Society of Kenya (MCSK) CEO Ezekiel Mutua has welcomed the implementation of the levy, saying it is a sure way to ensure artists earn from their work.  

Cabinet Secretary for Youth Affairs, Sports and the Arts Ababu Namwamba is also optimistic the funds will be put to other good uses apart from paying out the artists, including establishing facilities such as digital content creators’ academies which will upskill creatives.

Namwamba added: “We are revamping the exercise of royalties’ collection because that is where the problem is. We are implementing a system that will help us collect the royalties digitally.”

Related content: Who gains from Kenya’s dysfunctional music royalty space?