The argument of Intellectual Property especially in music is sometimes taken to the realm of the absurd; for instance in the theatres, Thespians perform Shakespeare and Goethe all the time without requiring written permission but in music every now and then the BMGs and SONYs of this world from time to time do bring infringement suites for music of musicians who are long dead. Art is supposed to be a gift to humanity not merely a commodity for resale… or so we thought.
If you think about it, it is tantamount to saying that someone should not sing a song they like in the bathroom without written permission from the original composer of the song! Look at YouTube, it is full of clips of other people singing popular songs and they are not being
sued!
Now, will SONY or JB Maina sue Wangari if she makes a clip of herself singing his song on youtube?…probably not. Why? Because they do not think Wangari will make any money from it. So copy right is no permission to perform but rather it is permission to earn using
someone’s art composition. It is a license to make money issued by the originator of the artistic expression to a third party.
Now here comes the interesting part. From the beginning, the rights to intellectual property, in many cases, do not entirly belong to the artist rather the artist share of earnings is normally much less than that of the producers and publishers of art whose work it is to commercialize art.
Most notably, The rights can be bought and sold such that the original composer of the music may not hold any rights at all for his so called intellectual property. Meaning that he or his
next of kin can perform the art piece but they cannot earn a living from it; especially after his demise the same producers and publishers will come to “moan” with the bereaved family and offer to stabilise them financially, now that the bread earner of the family is gone, by
buying off the little rights the artist had left to produce or publish the artwork.
The intellectual property, is then reduced to a commodity whereby you find the businessman without a musical note in his voice owns the rights to an elegant musical piece and the dimwit and the dullard have sole authority over the publication of well written literature.
That said, intellectual property is a commodity business that thrives on restricting commodity use. However, with the coming of the internet age, it is become very possible to get art for free especially in the third world where copy right rules are not followed to the letter.
But even in the first world, people go round copy right through “file sharing” because it is not feasible to stop two people from exchanging art work in private. It is not also legally feasible to stop them from exchanging art work in an online public forum; having already purchased the rights they cannot be stopped from exchanging the rights. The music artists and their producers have now been forced to heavily rely on live performance shows as the sure way of enforcing
copy right and earning income.
More fundamentally, given that art has become a commodity for sale, and with it intellectual property, going by market logic the value of something is determined by its use to the community.
In Kenya, the value of movies and music is not of immediate priority and its market
value currently ranges from free internet downloads to Kshs 50 per CD on the streets and exhibition stands of Nairobi. The artists compositions are mainly depictions of street life in oral and written form but on compilation of their art work they demand a fee for telling people what they already know and so the art of itslef does not add value to its receipient and what they are actually buying is the price of the CD container and a bit of psychic pride in that they are watching what their peers are watching and in these sense they are not left behind the gaping times.
For the majority of Kenyans who are grappling with the price of kerosene, the use value of art is almost non-existent. Why, you may ask, is the common man obsessed with the market price of Kerosene and not the market price of a music concert… even in places where art is
more prominent, art performances in pubs and coffee houses mainly serve as an accompaniment to the drinks and the theatres are dilapidated to say the least and the performers get compansated accordingly.
This is the voice of the market, there is no market for art in kenya and the only way it gets by is through sponsorship; from the largesse of foreign institutions and local “well wishers”who made their fortune in all manner of businesses except in the art business. This situation is not unique to kenya, though, for even in the Western world art thrives on its connections with the well to do because in the strict sense, there is no market for it; the bulk of art has no use value rather it can only appeal to charity.
The market for art is really a charity of sorts for the art commodity has no real use value as such there is no exchange of use value with money but a gifting of money to the performer without any expectation of gaining value on the part of the audience
Consequently, the idea of copyrighting is not backed by use value and it is use value that dictates the value of a particular occupation in soceity. Perhaps, recognition is important for the human psyche and when one originates an idea and someone else refuses to acknowlegde him for it one may have a right to be upset. But acknowledgement should not mean monetary compensation because the artists ability to draw on charity is not based on the “art” itslef but on the sympathy the masses have towards him or her.
This copy right business has become big business in the local social scene where until recently we had in place the Music Copyright Soceity of Kenya (MSCK), which was disbanded over misuse of funds. Our copyright watchdog had been enforcing what it termed as copyright law! And yet when we look at the fraternity of local urban musicians we just feel like crying! Their music is a carbon copy of the american hip hop music and culture.
Should one copyright a blue print or the carbon copy? Most, if not all, of their ideas are gained from mimicing the western hip hop culture thus the “intellectual property” is not even theirs. The only difference is in the language and wordings. Which brings us to the question should language and wording have been copyrighted as MSCK is doing? In hindsight it did not make sense but it surely made money!
If today I do something and call it art and tomorrow you do something similar and call it entertainment then according to copyright law the entertainer has a case to answer!
Apparently, there is an ongoing tussle, in the River Road productions scene, between Makadem and JB Maina over the hit song “Reke Tumanwo” which was originaly composed by JB, resampled by Mike Rua in Mugithi Style and now Makadem used the instrumentals without seeking written consent. The song itself is not informative and I do not know whether it qualifies to be called a song as there is hardly any singing in it.
Fine, JB atleast seems to acknowledge this as he is talking about instrumentals. He supposedly being the originator of the instrumentals has certain rights that are due to a first born such as “artistic” acknowledgement. But Djs use other peoples tunes all the time and do not have to ask them for permission everytime they come up with a new remix!
I personally think that the beef is really that Makadem has been making a bit of dough riding on the back of JB’s instumentals. However, it all boils down to Makadem’s ability to gain sympathisers and has really little to do with instrumentation… and besides what instruments can JB really play… did he not get the tunes done in a certain studio, talk of a copycat copyrighting!
by Poe. T. Kritik
NOTE:
According to media reports, the Music Copyright Society of Kenya has since been deregistered after complaints by musicians of misappropriation of funds. This is contained in Gazette Notice no.5093 of May 2011, which saw the society as being deregistered on 1st April 2011.