Copyrights, royalties and music piracy in Malawi

Copyright Law

The first president of independent Malawi was Kamuzu Hastings Banda, who ruled from 1966 until 1994. There had been a very strong musical tradition in Malawi, for example the traditional music known as pamtondo (named after the mortar used to pound maize), in which two women would pound in rhythmical opposition while singing songs often discussing men. Dr Banda was very clever in turning these traditional songs into praise songs (of his leadership) by keeping the same musical elements but changing the lyrics. This was arguably one of the first instances of plagiarism in Malawian music. However, at this time there was still practically no concept of copyright in Malawi. According to a prominent composer and recording artist at the time, Bernard Kwilimbe, people just didn't think about it. In that era there was one all-encompassing recording company, radio station and television broadcaster: the Malawi Broadcasting Corporation (MBC)[i], which would typically pay artists a salary and keep all the rights for themselves. Some royalties were collected by the British collection agency PRS[ii], albeit primarily (or even entirely) for international recordings, so that no money collected found its way back into Malawi.

The Imperial Copyright Act of 1911 and the Copyright Act of 1965, which was adopted from British legislation, were used during the Banda era. But as time went on, it became clear that Malawi needed to write its own law. The first conference to discuss a new bill took place in 1986 at Chancellor College in Zomba and was attended by the UNESCO cultural affairs section, World Intellectual Property Organisation (WIPO), the Book Publishers Association of Malawi (BPAM), as well as other stakeholders and judicial representatives. In 1989 the new Copyright Act[iii] was passed into law. According to Bernard Kwilimbe, Chairman of the Ministry of Arts and Crafts, its function was “to bring a national legislation with salient aspects of a copyright law in compliance with intellectual property protection systems, treaties, protocols and conventions in assuring that the creative industry and those engaged in it benefit from their creativity.”[iv]

Royalty Collection

Integral to the new act was the creation of a Copyright Society of Malawi (COSOMA)[v] to promote and protect creativity in the country. COSOMA was created in 1994 and charged with two main functions. Firstly, it is responsible for the administration of copyright law, tackling infringements such as piracy and illegal publication, as well as advising the government on copyright issues. Secondly, it acts as a royalty collection agency on behalf of artists who are members. COSOMA paid out 50 million MK (over $100,000) in 2014, with the biggest artists receiving something like 2.5 million MK ($5,000). This is not much, and since most of these artists receive very little from album sales, they get most of their income from sponsorship deals and live shows instead.

There are several radio stations in Malawi and each one has a unique licensing agreement. Those that generate little revenue, such as the Christian stations, pay a fixed fee, while others work from a tariff system, which depends on their revenue and how much music they play. Stations that play less music pay less in royalties, while those that play more music must pay more. However, the biggest problem in this regard is getting accurate playlists from the radio stations. In Malawi the system is still not automated, so DJs are supposed to fill out log sheets. There are many complications here. Often the log sheets are not submitted at all, so that royalties can only be estimated. In situations where the author can't be accurately determined, royalty money goes directly to the association that acts on their behalf. BPAM therefore would collect royalties on behalf of unknown authors, and spend the money on developing the field of publishing, instead of the money going to the artist him or herself.

The most common cause for legal action comes as the result of failure to pay royalties by radio stations. In 2007 the MBC were owing 35 million MK (US$90 000) to COSOMA. A lengthy legal battle ensued, resulting in the government stepping in to pay the dues for the station, which is still under their jurisdiction[vi]. There have been other similar incidents with other stations, such as Joy FM in August 2014, but this, and others, have mostly been settled out of court.

Piracy & Distribution

Piracy is a massive problem in Malawi. In an interview with one of the most popular singers in the country, Skeffa Chimoto, I was surprised to hear that he receives almost nothing from sales of his CDs, even though you hear his music playing practically everywhere.

Unfortunately in Malawi (and elsewhere), there are many artists who aren't fully aware of their rights. When you create a work, you own the rights for distribution, broadcasting and public performance of that work. Whenever anyone uses your work without your permission, they are breaking the law and can be fined or sent to jail and the artist can be compensated for damages. Fines in Malawi are presently very low - ranging from 200 to 15 000 MK (in US dollars, about 40c to $30). However when the conversion bill (a legislation designed to make up for fluctuations in value of the currency over time in Malawi) is applied, this becomes 100,000 MK to 750,000 MK ($200 - $1,500). The maximum imprisonment is one year.

Most of the crimes against copyright law are by minor peddlers of pirated materials. The main operators have been seldom found out or taken to court. With the small-time dealers, products are usually simply confiscated, although there has also been a yearly tradition of publicly burning pirated materials on World Intellectual Property Day[vii]. One major problem for those tackling pirated materials has been locating the addresses of the manufacturing plants themselves, although in 2013 a prominent musician, Lucius Banda, took the law into his own hands and hunted down these manufacturers and confiscated reproduction equipment when was then sent to COSOMA.[viii]

If one speaks to any top artist in Malawi on the issue of piracy, or reads The Nation newspaper or its website[ix], for example, one would find complaints from almost every prominent artist. Some blame COSOMA and say they're not doing enough; others say it's due to modern technology such as CDs and flash drives that are much easier to copy and sell than old cassettes. In 2013 the then biggest cassette distributor in Malawi, Afri-Music, saw monthly sales drop from 90 000 units to just 8 000. They eventually closed their doors to business after a consistent decline in this manner. Much of the problem to them stemmed from the introduction of flash drives and the technologies to play them. A flash disk costs 1500 MK for a vendor to buy and can fit 200 songs or more, which are easily ripped from a computer. These music-filled flash drives sell for 2 000 MK, meaning the current value is 500 MK for 200 songs, none of which goes to the artist.

COSOMA is presently working on an Integrated Arts Development Project with assistance from the Royal Embassy of Norway. Part of that scheme will be to facilitate the development of a much-needed distribution company capable of supplying music to the whole country in such a way that the artists can once again benefit from their works.[x]

Modern times are constantly changing and an ongoing challenge is to be able to adapt. With greater understanding, civic education and development of bodies capable of representing artists and collecting royalties, things are certainly moving forward in Malawi. CDs may have come and gone, and we've seen the increasing use of flash drives, websites such as malawi-music.com, and mobile phone services such as Airtel Money, to buy and sell music. But the key aspect driving the Malawian music industry - the creativity of the artists themselves - remains intact and therefore bodes well for the future.