Understanding music rights under copyright

“I was only 19 when I first walked into Kasiwukira Studios, the best music recording studio in Uganda at the time, found in the heart of Kampala City, on Ben Kiwanuka Street. At that time, I couldn’t afford the studio fees, but I managed to record my first album dubbed, Ekyasa Ky’abakyala, which provided me a good head start in my music career.

Kasiwukira was the biggest music distributor and every musician at the time desired to catch the eye or ear of Kasiwukira’s team for a distribution deal. He paid cash for the music and had a formidable network of music retailers throughout the country. The most selling artistes at the time, including Fred Sebatta and Paul Kafeero, recorded their music in Kasiwukira studios and it was almost automatic that the distribution of their music would be by the same entity. It was such an enviable privilege to deal with Kasiwukira.

My first distribution deal with Kasiwukira was in 2002 when I released my third album, Abaana bo. This was made easy because my second album, Omuzadde Katonda, had broken the ceiling in sales and the Kasiwukira team was eager to jump on this third album for countrywide distribution. 

The negotiations ended with me getting Shs11 million after signing a contract that I didn’t even read at all.
By 2006, because of rampant piracy due to weak copyright protection mechanisms, the likes of Kasiwukira lost interest in buying music rights because the sales had gone down and it was becoming difficult to break even. This loss of interest was fuelled by the fact that they had been used to reaping huge profits from music sales.

The new copyright regime ushered in by The Copyright and Neighbouring Rights Act, 2006, brought a bit of sensitisation and understanding of rights under copyright. Unfortunately, to this day, conventional music distribution has never regained pace and now, we are witnessing the new wave of the likes of Kasiwukira’s estate wanting to regain their former glory by exploiting the legally wide provisions of the agreements they made during their heydays. 

The apparent action of issuing a caveat emptor “buyer be aware” notice in the media got me thinking and sent me rummaging through my documents to see if I could find my 20-year-old agreement with Kasiwukira Ltd. I failed to find it but a colleague sent me one akin to the one I signed, at least in legal details.

On perusal of the standard agreement that Kasiwulira made with the musicians then, his claim over copyright is well founded. However, the agreement also reveals that the musician, as well as Kasiwukira  and his agents, did not have proper knowledge of what they were dealing in to allow for a proper meeting of minds. This is a substantive component if any contract is to be deemed good in law and enforceable.

Let us assume with much certainty that most musicians did not understand what they were signing away and Kasiwukira got away with a bargain that is clearly unconscionable due to unfair bargaining and unfair substantive terms.

On the side of Kasiwukira and his agents, the wide terms in the agreement show that they were either too shrewd to try and take everything or were unaware of the different rights under copyright, or both. Whatever the case, there is need to sort the mess.

Kasiwukira posed as a music publisher doing a music distributor’s job but the essence of the difference between the two is that each deals in a different type of copyright. The publisher deals with copyright in the song, whereas the distributor deals with copyright in the sound recording. 

Kasiwukira’s main interests are the mechanical loyalties that accrue from the sound recording and a smaller percentage of performing loyalties as usually guided by the Collecting Society tariffs. 

The music publisher’s role is to make sure the songwriters and composers (this includes people who commission them to create the work or employ them) get payment when their compositions are commercially exploited. They usually do this by issuing licences and earning a commission for it. One of the licences that can be issued is the licence to make a sound recording in the event that the performer or singer is not the songwriter or has not commissioned one. The person (record label), who makes the sound recording, will own the copyright in the sound recording and will enter a music distribution deal with a distributor that is if it has no distribution capacity itself. 

Looking at Kasiwukira’s standard agreement, I am still wondering how a music distributor is claiming everything. Even if he was legally right, the claim is outrightly immoral.”

The author, Artiste Sylver Kyagulanyi, is a musician/ lawyer, and the executive director of the Copyright Institute of Uganda.