The Ministry of Sports, Culture and the Arts has a draft National Music Bill 2016. The Bill is meant to provide for development, management and promotion of the music industry and for connected purposes. The Bill was drafted from the draft music policy which was subjected to public scrutiny and many issues raised by the stakeholders.  Section 3 of the Bill provides that the main purpose of the Bill is to (a) facilitate development, management, promotion and regulation of the music industry. (b) Safeguard the Intellectual Property of the Musicians. (c) protect and promote the well being of music practitioners (d) set standards in the industry. Does this mean that there are no laws and regulations in Kenya that already deal with these issues? On the first issue, there are already institutions both within the public and private sector that deal with the same. For instance, the Presidential Music Commission (PPMC) was established for the same purpose. On safeguarding the IP of Musicians, these are already covered by existing IP laws such as the Copyright Act Cap 130, Trade Marks Act Cap 506 of the Laws of Kenya and the Anti Counterfeit Act Cap 130A of the Laws of Kenya. The the third and fourth issues are also covered by the PPMC and the Department of Culture.

There are specific provisions which need rethinking as they are not clear and likely to cause more confusion within the industry and this begins with several definitions under section 2 such as the definition of music, performance period, practitioner, music etc. The Bill proposes the establishment of a National Music Council. As stated earlier, would it not be better to enhance the capacity and mandate of the PPMC? The National Music Council will among other things licence the sale of music business (section 17). This will increase the cost of doing business at a time when the government is trying to reduce the cost and bureaucracy in doing business in Kenya. The Purpose of part IV of the Bill is not clear as it also interferes. Section 24 requires that all associations within a certain class should each form a single federation. How does this work in light of section 46 of the Copyright Act which provides for collective management organisations? Are these federations simply societies as set out under the Societies Act Cap 108 Laws of Kenya? What is the role of the associations/federations?

Part V deals with percentage of local content on airplay. This is an issue that has already been addressed in other laws and is being implemented progressively by the Communications Authority under the Kenya Information Communications Act. Section 30 requires all public institutions and public airports to play Kenyan music.  Part VI deals with monitoring and enforcement of provisions of the proposed Bill but does not take into account existing institutional mechanisms under Cap 130, Cap 130A and the KICA Act and Regulations. There is need to have further consultations with other government agencies already regulating different aspects of the sector.

Part VII proposed the establishment of the National Music Fund as a separate entity but under the National Music Council. The Government at the moment is shying away from creating new bodies and is actually in the process of reducing the numbers. As proposed earlier, these could all be done under the PPMC and the same applies to the talent academy under  Part VIII. The purpose of the Music Tribunal is not very clear but seems to be duplicating the mandate of the Competent Authority set up under Cap 130.

While the intention of having the Bill is noble, it is important to look at existing legal and administrative structures and how they can be enhanced or facilitated to ensure that the music and other copyright/creative industry sectors develop, grow and are well managed.