Business Daily (Nairobi)
Wanjiru Waithaka
27 September 2007
When Simba Wanyika started their grand tour in 1970s little did they know that the group would not only hold sway in East Africa's music scene, but that it would split into small groups that would likewise dominate the music arena.
It had broken from Jamhuri and Arusha Jazz. Simba Wanyika led by two Tanzanian brothers George Peter and Wilson Peter Kinyonga soon broke into Les Wanyika, which had John Ngereza, Omar Juma, and Issa Juma. The last two left Les Wanyika for Super Wanyika and Wanyika Stars respectively.
While the break-ups are common today, the management of their copyrighted works is getting tricky.
So far, Simba Wanyika and Kakai Kilonzo's Kilimambogo Brothers Band are examples of popular groups that split in the 70s. Kakai first recorded music as the Kilimambogo Brothers Band with his cousin Joseph Mwania, but they split in 1978 with Mwania who recorded his singles as Original Kilimambogo Stars.
The latest split that is talk of town is Kayamba Africa which has split into three Kayambas; the original Kayamba Africa, Kayamba Fiesta and Kayamba Roots.
Despite historical evidence that splits are common, new bands still overlook basic management issues such as registering the name or recording their original music so that in the event of a split both are protected by copyright. The result is confusion among fans when there are several groups all playing the same music, which can lead to loss of business.
"Three of our members left last month with most of our contacts as well as the telephone line we used most of the time. Before we informed all our fans about the change of numbers we had lost some business to the other group when potential clients called that number," said Green Mmbanga, chairman of the Cheche Group.
The group started out performing acapella eight years ago, but had since shifted to neo-Afro-fusion. The members who left formed a separate group called Cheche Africa. The splits are raising fundamental management concerns in the music field.
Once a group has built a loyal following, it is tempting for members who split to retain some aspect of the original name because of brand recognition, which helps to get business.
So far, the two groups that have split from Kayamba Africa have the Kayamba name and also perform similar music (traditional/African folk songs) much to the dismay of Juma Odemba the leader of the original Kayamba. He has no problem with the other groups using the Kayamba name, but wants them to stop performing the same songs.
"The confusion about the name is hurting our band and the Kenya Copyright Board advised us to write to the other groups telling them it is illegal to perform, broadcast or distribute this music without our permission, which we have done," he says.
Kayamba Africa was formed in 1998 by six members who used to sing at St. Barnabas Church in Nairobi. The name 'Kayamba' is a musical instrument in Swahili.
Three members led by Peter "Kadabbi" Ngeru walked out in 2000 and formed Kayamba Fiesta after disagreements on management style and how to share proceeds. By then, the group had recorded one album, which became a big hit and the band got a KORA nomination.
"We have not received any letter from Kayamba Africa, but if we did we would challenge it because our music is different and it's difficult to patent and own dancing styles, which keep changing," says Mr Ngeru.
Kayamba Africa has a constitution which says that recordings of the group remain the property of the group and any member who opts out cannot share in revenues from group recordings made when he was a member. But experts on intellectual property law say that legally, a person who leaves a group does not lose his rights to the copyright.
"Ownership can vest in a group or in an individual. For instance, if you can identify who wrote the lyrics then that person owns them even if he leaves the group. It vests in a group where it is not easy to define who contributed what to the recording otherwise called joint or collaborative works," says Dr. Ben Sihanya, chairman of the commercial law department and senior lecturer at the University of Nairobi's School of Law.
Before he passed away last week, Samwel Macharia who worked for over a decade with the Music Copyright Society of Kenya (MCSK) including a stint as chairman, told Business Daily that the problem with many groups is that they don't say what role each member played in recording an album, which leads to some members being conned.
"In any group or choir there is always someone who composes while others are performers. The rights to ownership are with the composer while performers have neighbouring rights, not copyrightable, for remuneration meaning you cannot claim on individual basis," he said. Performers have rights till the end of the 50th year after recording while a composer own rights during his lifetime and 50 years after his death.
In cases like the Kayamba groups, additional issues arise since these groups perform folk songs traditionally owned by communities.
Dr. Sihanya says that folk songs can be copyrighted as long as they have been transformed by adding lyrics, or rhythms for instance. Mr. Macharia concurred, saying that if a song is identical to the original version you cannot get a new copyright for the recording. But he says the law is not being implemented as it should, which is a big problem.
"There is no clear direction of how folklore should be commercially exploited. Ideally, royalties should be charged and the proceeds given to communities that own these songs to develop culture as happens in other countries," he says.
In Nigeria, the Copyright Council has an agreement with the body that collects royalties that are paid to the Ministry of Culture said Mr. Macharia who had trained in several countries.
"But the bigger issue here is that groups like the Kayambas have recorded songs that are not folklore without permission. Kayamba Fiesta has recorded Amokira Ngatho and also Mirigo thii, which have owners that can be identified, but the law (Kenya Copyright Act No. 12 of 2001) is ambiguous with many areas that cannot be implemented as they are.
And the Kenya Copyright Board (KCB) seems ineffective so that when people go to it they are referred to lawyers yet it should be the one qualified to give advice," he said.
Ms Marisella Ouma, acting executive director of KCB, says the board cannot interfere with a civil suit where one party has sued another. "But we can mediate if people are willing to come to us and negotiate in the case of licences for example. We also get involved in criminal matters and have an enforcement unit with investigators and prosecutors," she says.
While admitting that the MCSK has failed artists in the past when it comes to collecting royalties she says that it is now licensed annually by the KCB and has to fulfil its mandate for the license to be renewed.
"We supervise their activities and they are giving us quarterly reports. There is already some improvement and MCSK did a distribution of royalties this year during its annual general meeting. But royalties is not the main problem in Kenya, piracy is," she says.
This is compounded by ignorance among musicians who perform songs without recording them not realising that the law only recognizes tangible recordings such as a cassette or CD. Whoever records a song first becomes the owner of the copyright.
"Copyright is automatic immediately you put it in tangible form and you don't have to register your property to own it. This is based on the World Intellectual Property Organisation (WIPO) which most countries are signatory to," Mr Macharia said.
Dr. Sihanya says copyright is dependent on factors like nationality and the geographical location where a recording is first produced . "If a musician is Kenyan, even if the work is recorded abroad, copyright is recognised in Kenya. If a recording is done in a country that is a signatory to the Berne Convention, copyright is recognised in all countries party to the Convention," he says.
Under The Berne Convention of 1886 copyrights of literary and artistic works do not have to be asserted or declared as they are automatically in force at creation. The Berne Convention was succeeded by WIPO in 1967.
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