Attorney General Githu Muigai. (Photo: George Njunge, Standard)
In April, Attorney General Githu Muigai gazetted the far-reaching royalty tariffs for artists via Kenya Association of Music Producers and Performance Rights Society of Kenya.
It is not clear why the major announcement did not receive a major media attention considering that even media houses will directly feel the brunt of escalated costs.
The tariffs, as developed by the Kenya Copyrights Board (Kecobo) will certainly reignite the hushed debate on the potential abuse of powers by regulatory bodies – especially when they are allowed to arbitrarily impose and collect levies from the public with little or no public participation thereby diming accountability.
Even as Prof Muigai gazetted the new tariffs, they still run the risk of going against a constitutional petition number 5 of 2016 ruling at the Malindi High Court. Notably, in his November 3, 2016 ruling Justice Said Chitembwe maintained that Section 30A of the Copyright Act Cap 130 was unconstitutional.
Lack of public participation
His argument had been based on an even more fundamental premise – that the key changes were disguised as minor changes made vide the Miscellaneous Statute Bill. But it was a major amendment.
According to Justice Chitembwe, the changes should have been subjected to a reasonable level of public participation.
“The upshot is that the petition dated March 21, 2016 is merited as is hereby granted as prayed.
The manner in which section 30A is implemented is unconstitutional. Section 30A of the Copyright Act is unconstitutional as it was enacted without public participation and it is being retrospectively applied” said the Judge.
In the new rates, aircrafts will be charged Sh1,039 per seat for audio or Sh1,234 for video for the first 50 seats. On the other hand, motor-cycles will be charged a daily rate of up to a maximum of Sh300 per year. Tuk-tuks will pay up to Sh900 for the same period.
The mode of collection has not be clarified.
The choice of raiding pro-poor modes of transport to raise revenue for artists could however proof difficult considering the meagre earnings and other higher operational costs.
Video exhibitions will be charged an annual flat rate of Sh6,000 while juke box operators will part with Sh9,000 and Sh12,000 respectively for audio and sound per unit per year.
Non-resident DJ’s and VJ’s will pay a flat rate of Sh12,000 and Sh15,000 per unit, per person annually, respectively. “Music on hold” will cost Sh150 per landline per year.
Concerts attracting up to 3,000 participants will rise to Sh250,000 and Sh300,000 per year for audio and video, respectively.
Roadshows per truck per day for corporates, NGOs, government or politicians will cost Sh30,000 per day. It will cost the same for promotional activities.
No one is spared
Live music performances will cost per venue per performance of over 400 persons Sh100,000 or a maximum of Sh1.5M per year.
Each or any choir will pay Sh12,000 per group. Night clubs and discotheques in Nairobi, Mombasa, Kisumu, Eldoret and Nakuru will pay between Sh78,000 to Sh550,000 per year.
If you play music at the elevators and lifts, prepare to part with between Sh570 to Sh7,000 for audio and Sh700 o Sh8,750 for video.
Others affected include gymnasiums, fitness centres, hair salons, barbers, beautician spas, private members clubs, halls, shops, stores, showrooms, banking halls. New media such as caller ring back tones, downloads, and streaming will attract new levies. Hotels, restaurants and bars will be charged based on their ratings.
Industrial premises, factories, staff canteens, engineering workshops , greenhouses, pacjhouses will equally be charged based on their sizes per square foot on annual basis.
Public Service Vehicles (PSVs)and taxis will be charged between Sh2,000 to Sh30,700 for audio while visual PSV’s will pay between Sh2,500 and Sh36,500.
Broadcast media will pay between Sh200,000 to Sh700,000 per month per commercial station. Commercial television stations will pay Sh150,000 per month.
On the strength of an unconstitutional Section 30A of the Copyrights Act and lack of public participation in the arbitrary reviews, it would do well for government to revoke the new tariffs.
Government needs to rethink the powers of regulatory bodies to abuse their powers to review rates without parliamentary or other independent oversight mechanism.
The practicability of collecting some of the levies say with motorcyles and other listed quarters paint to no mean fete and at best offer a lucrative avenue for enforcement officers to be easily compromised.
Mr Mutoro is the Secretary General of the Consumers Federation of Kenya (Cofek)