Performers’ rights: compatibility of mandatory collective administration in the copyright act with constitutionally guaranteed rights and freedoms

Abstract

Collective management organizations have been widely lauded for their efficiency and near elimination of the transaction costs on the part of the rights holders that would otherwise be incurred in exploitation of copyright and related rights. However, when it comes to compulsory collective management/administration of copyright and related rights, questions have been raised about the implications on the freedom of association and the right to property. The purpose of this project was to look into the human rights repercussions of compulsory collective management of copyright and related rights in general and the constitutionality of Section 30A in particular. The human rights in focus were the freedom of association and the right to property. The project preceded from the normative framework of collective management organizations (CMOs) in general, the freedom of association and the right to property, looking into both local and international instruments. On establishing how compulsory collective management of rights, the freedom of association and the right to property interact, the limits and incentives of the allowable limitations on these rights for the sake of compulsory collective management of rights were discussed. Section 30A of the Copyright Act was then examined in this context in a bid to determine its permissibility in the face of the legal, political and cultural realities in Kenya. Two judgments that have been made so far on the constitutionality of Section 30A were used as tools of analysis. The study was mainly done through desk research. It established that due to the public participation aspect that was lacking in Section 30A, it is unconstitutional as it violates Article 118 of the constitution of Kenya, but would have otherwise been an allowable limitation on the right to property and freedom of association, considering the realities of Kenya’s creative sector and level of development. The study recommends amendments to the law to strengthen regulation of CMOs, as well as the enactment of a Performers’ Rights Act